r. ^^'''■^^^^^ /yx_ ^ <^ ■C^.^^^^.^.^u,^ 4^^^ ^^^ 606 Mont THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW ■■lONEHS, "t'on.D.c. f if' PEINCIPLES LAW or PERSONAL PROPERTY, INTENDED FOR THE USE OF STUDENTS IN CONVEYANCING, By JOSHUA WILLIAMS, ESQ., OF LINCOLN'S INN, BARRISTER AT LAW, ONE OF THE CONVEYANCING COUNSEL OF THE COURT OF CHANCERY. AMERICAN EDITORS, BEN'JAMDT GERHARD AND SAMUEL WETHERILL. FROM THE FIFTH LONDON EDITION. WITH NOTES AND REFERENCES BY SAMUEL WETHEEILL. PHILADELPHIA: T. & J. W. JOHNSON & CO., LA"W BOOKSELLERS AND rUBLISHERS, No. 535 CHESTNUT STREET. 1 8 6 G. T Entered according to the Act of Congress in the year 1866, by T. & J. W. JOHNSON & CO., In the Clerk's Office of the District Court for the Eastern District of Pennsylvania. SHERMAX & CO., PUINTERS. PEEFACE TO THE FIEST EDITION. The following pages are intended as supplementary to the author's " Principles of the Law of Real Property." At the time when that work was written, the plan of the present treatise was not matured, and a chapter " On Personal Property and its Alien- ation" was inserted in that work. The contents of that chapter will be found interspersed in parts of the present volume ; and should a second edition of the " Principles of the Law of Real Property" be called for, it is the author's intention to omit that chapter of his former work, and to sujjply its place by some further remarks on such elementary parts of the law of real prop- erty as may appear to have been but slightly touched upon be- fore. The very favorable reception which the author's work on the law of real property has met with from the profession has encouraged him to undertake in the present work a task, he believes, hitherto uuattempted : for it is singular that, notwith- standing the rapid growth and now enormous value of personal property in this country, no treatise has yet appeared having for its object the introduction of the student in conveyancing to that large and increasing portion of his study and practice which com- prises the law relating to such property. As to real property, he may take his choice amongst three or foiir publications, all having the same object of facilitating his studies; but the law of per- sonal property, though sufficiently treated of in all that relates to it as purely mercantile, has not yet had any elementary treatise 6S.7514 IV PREFACE TO THE FIRST EDITION. on its principles, so far as tlic}' aftect tlie practice of conveyancing. The present work is an attempt to supply this deficiency, and, in conjunction with the author's " Principles of the Law of Real Property," to afford the student a brief and simple introduction to the whole system of modern conveyancing. The novelty of the attempt has, however, increased the difficulty of the task. The author has endeavored proportiouably to increase his dili- gence and care. He can, however, scarcely hope to have escaped all errors. And here he would caution the student against too implicit a reliance on the dicta of text-books. Elementary books cannot from their nature be completely accurate. As helpers to more perfect knowledge, they may be most valuable. But it would be as great a mistake for a student to remain satisfied with his knowledge of a text-book, as for an author to compress into an elementary work all that could possibly be said on the subject. 7 New Square, Lincoln's Inn, 23d May, 1848. PREFACE TO THE AMEEICAN EDITION. The object of the present edition of this work lias been to accommodate Mr. Williams's Treatise to tbe United States, by incorporating in tbe notes the American law ; so as to make the book useful to the American profession, both as an elementary composition for the student, and as a book of reference for the practitioner. The editor has not indulged in original researches; but it will be suiScient proof of his industry to state that several thousand cases have been referred to in the notes, and in most instances where a citation has been made, the original book has been consulted, and when practicable, the opinions of the Judges have been quoted, rather than the syllabus of the reporter of their decisions, or any abstract of such judgments. An index of the American cases, and of the additional EngHsh authorities refer- red to in the notes to this edition, accompanies the book, by which any decision cited in those notes may be readily found. If it be true, as the author modestly tells his readers in the preface to the first edition of his work, that no text-book of the law can be completely accurate, how very much less must be the approach to perfection by annotators. With this brief introduction the work is submitted to the pro- fession; should it prove useful, the object had in view will have been attained. 131 South Fifth Strkkt, Philadelphia, August 13, 18GC. ADVERTISEMENT TO THE FIFTH EDITION. In this edition the alterations which have taken place in the Law since the publication of the last edition have been incor- porated in the text. 3 Stone Buildings, Lincoln's Inn, February, 18G4. TABLE OF CONTENTS. mTEODUCTOEY CHAPTER The pages referred to are those between brackets [ ]. PAGE Of the Subjects and Nature of Personal Property, . . 1 PART I. OF CHOSES IN POSSESSION", 9 CHAP. I. Of Chattels which descend to the Heir, 9 CHAP. II. Of Trover, Bailment, and Lien, 22 CHAP. III. Of the Alienation of Choses in Possession, .... 32 CHAP. lY. Of Ships, 52 PART 11. OF CHOSES IN ACT:I0N, .60 CHAP. I. Of Actions ex delicto, 60 CHAP. II. Of Contracts, QQ CHAP. III. Of Debts, 91 CHAP. IV. Of Bankruptcy of Traders, 124 CHAP. V. Of Bankruptcy of Non-traders, . . ... . • 149 8 TABLE OF CONTENTS. CHAP. YI. PAGE Of Insurance, 159 CHAP. YII. Of Arbitration, 165 PART III. OF mCOKPOEEAL PEESOIS^AL PEOPEETY, . . . 180 CHAP. I. Of Personal Annuities, Stocks, and Shares, .... 180 CHAP. II. Of Patents and Copyright, 214 PART lY. OF PEESONAL ESTATE GEXEEALLY, . . . .236 CHAP. I. Of Settlements of Personal Property, 236 CHAP. II. Of Joint Ownership and Joint Liability, .... 276 CHAP. III. Of a Will, 294 CHAP. lY. Of Intestacy, 326 CHAP. Y. Of the mutual Eights of Husband and Wife, . . . 340 PART Y. OF TITLE, 365 Appendix (A.), 383 Appendix (B.), 388 Index, 401 The pages referred to in the notes are those between brackets [ ]. INDEX TO THE AMERICAN CASES CITED. The pages referred to are those of the present volume. Aaron, Perry v. 507 Abbot V. Pinchin, 263 Abbott, Wright t. 178 Abby V. Billups, 255 Abel V. Forgue, 392 Abercrombie v. Knox, 189 Aberdeen v. Blackwell, 189 Abrahams, Robbins v. 485 Tripner v. 374 Abrams v. Camp, 166 V. Kounts, 132 Acheson v. McCombs, 426 Acker, Burrall v. 398 Smith V. 105 T. Ledyard, 155 Ackerman, Rogers v. 506 Adair, Clark v. 53 Adams, Allen v. 179 Bailey v. 192 Child V. 308 Cowan V. 502 Deberry v. 195 Dodge V. 138 Gardner v. 54 Hefiferman v. 503 Holly V. 421 Hunt V. 155 Joyce V. 93 Judson V. 404 Mowry v. 189 Nicholas v. 420 Pratt V. 162 Richardson v. 422 Sword V. 341 Terrall v. 167 V. Barrett, 159 V. Bayles, 262 V. Bush, 172 V. DeCook, 432 V. Frye, 155 V. Gay, 160 V. Whittemore, 241 Addicks, Commonwealth v. 490 Addison v. Bowie, 357 Agnew V. McElhare, 161 Agry. Wallace v. 203 Ahman, Zachrisson v. 119 Ahrenfeldt v. Ahrenfeldt, 489 Aiken v. Cathcart, 153 Aiken, Mathews v. 190 Ainsworth, Dresser v. 510 Pomeroy v. 304 Alban, Gilbreath v. 445 Albee, Buck v. 159 Albert v. Winn, 373 Albin V. Lord, 486 Albright, Wilson v. 200 Alcock V. Giberton, 164 V. Hill, 192 Alden, Capen v. 207 Alderson, Otts v. 511 Aldrich V. Jackson, 510 V. Warren, 497 Alexander, Ciples v. 442 Coppage y. 471 ^ Denis V. 94 Huse V. 205 Judge V. 426 Price V. 404 V. Gibson, 240 V. Troutman, 134 V. Williams, 426 Alexandria v. Patten, 205 Alger, Colwell v. 442 Thompson v. 280 V. Scoville, 144 Allee, Clark v. 398 Allegre v. Insurance Comp'any, 263 Allen, Beals v. 501 Bellows V. 125 Chase v. 134 Gifford V. 192 James v. 242 McMahon v. 54 Mooer v. 262 V. Adams, 179 V. Brazier, 133 V. Centre Valley Company, 399 V. Chase, 262 V. Cockerill, 507 X INDEX TO AMERICAN CASES CITED, Allen T. Culver, 206 V. Davi,«()n, 141 V. Dodd, 1(>2 V. Ilolden, 55 T. Hunter, 317 V. Jiirvii!, 143 V. Kimball, 20(5 V. JMereier, 100 V. Ogden, 501 V. Paneoast, 57 V. Reesor, 182 V. Rumph, 375 V. AVatson. 262 V. AVells, 398 V. 'Williams, 1I{> AVadsworth v. 193 AValiingsford v. 375 AVilliaras! v. 94 Ailing, Crane v. 389, 392 Allisi, Crosswell v. 105 Allison, Carr v. 138 T. Wilson, 3fi2 Allston, Ravises V. 156 Alna V. Pluramer, 141 Alsop's Appeal, 445 Alsop V. Mather, 383 Alston, Foster v. 491 V. Alston, 357 Alter, Beroihaus v. 205 Amber v. Hamlet, 94 Ambler, Ruddell r. 161 T. Beverly, 404 Ambrose, Basye v. 133 Ames, Northampton Paper Mills v. 127 United States v. 263 V. Howard, 317 Amidon, Hunt v. 189 Amory v. Gihnan, 167 Anable, Davis v. 204 Anderson, Coffin v. 78 Directors v. 122 Brown v. 516 Hammett v. 241 Mfcrys V. 339 Tankersley v. 190 Tinsley v. 190 V. Coonley, 501 y. DeSoer, 55 V. Douk, 200 V. Farnham, 262 T. Foster, 160 V. Levan, 204 V. Manon, 192 T. Neef, 389, 393 T. Roberts, 375 V. Tompkins, 408 V. Turnpike Company, 203 V. Van Allen, 518 T. Washabaugh, 440 V. Wheeler, 241 Wiggins V. 200 Andover v. Gould, 138 V. Grafton, 504 Andress r. Miller, 211 Andrew v. Brown, 408 V. Dieterick, 94 Andrews, Low v. 90 V. Andrews, 394 Andrews v. Beecker, 519 V. Brown, 383 V. Durant, 86 V. Hunneman, 426 V. Jones, 373, 486 V. Keith, 398 V. Kneeland, 501 V. Ludlow, 200 Andross, Sackett v. 219 Anesley, Lindsey v. 133 Anewalt's Ap., 362 A New Brig, Davis v. 82 Angel V. Pownall, 501 Angle v. Railroad Co., 121 Anthony, Bank v. 193 Gilbert v. 157 Apgar V. Hiler, 189 App V. Coryell, 380 V. Driesback, 58 Applegate, Smith v. 162 Appelby, Hawkins v. 408 Appleton, Bascomb v. 189 Grattan v. 421 V. Bancroft, 105 V. Donaldson, 153 Arbuckle v. Thompson, 119 Arden, Sterry v. 375 Archer v. Boyne, 380 V. Dunn, 380 V. Hart, 186 Arrafield v. Armfield, 373 Armistead, Picot v. 471 Armstead, Barbee v. 162 Armstrong, County v. 56, 498 Cruger v. 497 Hodges V. 190 V. Gray, 153 T. Stone, 491 T. Toller, 159 V. Hayward, 393 Arndt, White v. 66, 67 Arnold, Lindau v. 200 V. Camp, 202 V. Frazier, 200 T. Gilbert, 471 V. Hallenbrake, 501 V. Lanier, 125 Arrington v. Screws, 200 Arrison v. Harmstead, 156 Artcher, McCoy v. 510 Arthur, Bank v. 133, 160 Arthurs, Kramer v. 385 Ashbey, Dogan v. 204 Ashbrook, Cunningham v. 93 Ashe, Wood v. 509 Ashford v. Ewing, 68 Ashley v. Reeves, 608 Ashton, Thompson v. 510 Ashworth, Shallenberger v. 364 Association, Denny v. 304 Houser v. 303 McGrath v. 304 V. Association, 206 V. Berghaus, 159 V. Moore, 206 V. Webster, 304 Astor, Bank v. 501 Ogden V. 403 INDEX TO AMERICAN CASES CITED. XI Atkins, Bayard v. 354 Laughton v. 432 Smith V. 90 V. Colby, 99 Atliinson, Spear v. 203 Withers v. 156 Atwell V. Miller, 93 Attvill V. Ferrett, 330 Atwood, Lucas v. 397 V. Coburn, 139 V. Meredith, 399 Aubic V. Gill, 178 Audibon, Ayres v. 241 ■ Augbey, Cole Co. v. 190 Auld, Lanier v. 510 Aurand, Boyer v. 262 Austin, Glover v. 380 Grosvenor v. 397 " Ins. Co. V. 365 Logan V. 162 Pearce v. 66, 497 Rice V. 404 Sayre v. 178 V. Dorwin, 202 V. Mclnlay, 172 Young V. 94 Averill, Maxey v. 384 V. Loucks, 172, 204 V. Lyman, 392 Avery, Merrick v. 105 V. Moore, 125 Axers v. Musselman, 204 Ayer, Burnhan v. 155 V. Hutchinson, 162 Ayers v. Harnes, 157 Aymar, Bank v. 501 Ayres, Gerrish v. 262 V. Audibon, 241 V. Parks, 507 Ayrs, Shaw v. 263 B. Babb V. Clemson, 155 Babbitt v. Riddell, 339 Babcock, Van Marter v. 164 V. Booth, 125 V. Railway Corporation, 504 V. Weston, 242 Bachtell, Taney v. 130 Backhouse v. Jett, 378 V. Patton, 207 Backus V. Gould, 331 V. Murphy, 399 Bacon, Lewis v. 207 Preston v. 162 StafiFord v. 139 V. Brown, 206, 506 V. Crandon, 262 Bacot V. Parnell, 339 Badgely, Clark v. 161 Badger, Kendall v. 241 V. Phinney, 52 Badgett, Broughton v. 56 Badlum v. Tucker, 126 Bagley, Betts v. 240 Chamberlain v. 134 V. Burzell, 192 Bagley v. Peddie, 133 Bagwell V. Elliott, 433 Bailey, Bowman v. 404 De Zeng v. 393 Jackson v. 205 Stroud V. 470 V. Adams, 192 V. Bailey, 432 V. Bussing, 140 V. Mizell, 190 V. Powell, 380 V. Seal, 242 V. Stewart, 262 V. Taylor, 155 V. Teackle, 471 v. Trustees, 144 V. Wagener, 445 Bailie, Hart v. 202 Walsh V. 192 Baillie, Caron v. 508 Baily v. Brownfield, 189 Bain v. Clark, 72 Baird, Colladay v. 330 Patton V. 263 V. Matthews, 508 V. Tolliver, 132 Baker, Bittinger v. 72 Campbell V. 189 Hensley v. 509 Lobdel V. 501 Miller v. 68 Rockafellow v. 507 Stoallings v. 405 Tarleton v. 167 V. Briggs, 191 V. Davis, 66, 70 V. Fales, 52 V. Fordyce, 192 V. Gregory, 140 V. Haley, 160 V. Lorillard, 348 V. Lukens, 173 V. McFerran, 432 V. Stackpoole, 207 V. Taylor, 319 V. Whitting, 371 Baker's Ap., 211 Balcom, Gilett v. 72 Balcolm v. Craggin, 138 Baldwin, Bank v. 192 Dane v. 498 Litton V. 486 Lord V. 395, 397 King V. 190 Marston v. 52 Mellon V. 125 Preble v. 144 Reeves v. 501 Van Wagener v. 445 V. Carter, 373 V. Hale, 241 Ball V. Gilbert, 159 Ballentine, Bracken v. 200 V. Haight, 210 Ballume v. Wallace, 105 Baltimore v. Eschbach, 502 Bampfield, Philson v. 383 Banchur v. Warren, 93 Xll INDEX TO AMERICAN CASES CITED. Bancroft, Appleton v. 105 Banfield v. Brutton, 50& Bangs V. Hall, 139 V. Strong, 192 Bank, Baldwin v. 192 Barber v. 398 Barrington v. 155, S92 Bates V. 160 Beach v. 408 Beale v. 204 Beebee v. 193 Bennett v. 374 Billingsley t. 161 Bleight V. 362 Boughton V. 195' Bozeiuan v. 392 Brandon v. 78' Brown v. 55 Burns v. 191 Cleghorn v. 40O Clopper V. 153. Colonib V. 371 Crabb tf. 178 Dana v. 210 Dawsoa v. 193 Donaldson v. 38* Duval V. 371 Findlay v. 195 Fleckne-r v. 160 French y. 153 Grosverwr t. 20O Hemphill v. 501 Herrick v. 194 Henessy v. 210 Hunt V. 365 Hussey v. 205 Hutchinson v. 50&' Inge V. 192 Ives V. 157 Johnson v. 155, 42© Jones V. S94 Loudon V. 56 Mahone t. 180 Marsh v. 208 McDowell V. 190 McMullen V. 190 Merrick v. 389 Miller v. 407 Minor v. 38& MontgoEnery r. 486 Moorehead v. 20& Murphy v. 390 Payne v. 191 PindaH v. 205 Post V. 153 Ramsay v. 190 Ratcliffe v. 156 Richardson v. 190 Roberts v. 52, 66 Saltmarsh v. 161 Sanders v. 202 Shedd V. 408 Sigler V. 396 Society v. 501 Sparks v. 66 Spring V. 192 State V. 180 Stroehecker v. 189 Bank, Turney v. 160 Walker v. 159 Washburn v. 397 White V. 160 Wilkinson v. 123 Williams v. 178 Wilson V. 194 Winship v. 407 Woodworth v. 155 V. Anthony, 193 V. Arthur, 138, 160 V. Astor, 501 V. Aymar, 501 V. Bank, 195, 501 V. Barrington, 192 V. Benedict, 206 V. Bevine, 503 V. Boyer, 160 V. Brown, 206, 375 V. Burchard, 161 V. Cameron, 502 V. Carrol, 192 V. Colcord, 190 V. Cowdon, 171 V. Crary, 105 V. Crosby, 192 V. Cunningham, 153 V. Daniels, 205 V. De Grann, 203 V. Dixon, 193 V. Doolittle, 392 V. Dunn, 601 V. Edwards, 192 V. Emerson, 66 V. Ennis, 374 V. Ferris, 200 V. Fletcher, 190, 202 V. French, 193 V. Gibson, 190 V. Gore, 407 T. Gorman, 210 V. Govan, 194 T. Gray, 404 T. Gross, 155 V. Haldeman, 162 V. Hall, 155 V. Hammond, 157 V. Hanrick. 193 V. Hatch, 192 T. Hill, 192, 207 V. Hoge, 192 V. Huth, 378 T. Ives, 192 V. James, 192 V. Jones, 501 V. Kendrick, 207 V. Klegensniith, 194 v. Kortwright, 157 v. Lewis, 194, 504 V. Meredith, 207 V. Merrick, 162 Y. Messenger, 392 v. Myley, 385 V. NiJes, 162 v. Norton, 504 T. Penick, 155 T. Reynolds, 192 v. Rollins, 194 INDEX TO AMERICAN CASES CITED. Xlll Bank v. Roosa, 50, 334 V. Rosevelt, 206 V. Saving Fund, 503 V. Sears, 155 V. Smith, 157, 240 V. St. John, 172 V. Sullivan, 139, 196 V. Throop, 172 V. Topping, 442 V. Transportation Co., 121 V. Treadwell, 395 V. Turnley, 500 V. Vanmeter, 153 V. Walker, 153, 190 V. Wilkins, 401 V. Wise, 339 V. Woodward, 192 Banker v. Caldwell, 330 Bankhead v. Carlisle, 471 Banking Company v. Woodrufif, 373 Bank's Ap , 408 Banks v. Hughes, 510 Banorgee v. Hovey, 502 Barbarin v. Daniels, 56, 497 Barbee v. Armstead, 162 Barber, Rew v. 510 Starrett v. 206 Tobey v. 202 V. Bank, 398 Ward V. 383 Barclay, Finn v. 166 Bardwell v. Perry, 397 Bare, Moore v. 404 Barfleld v. Cole, 105 Barger v. Durvin, 196 Barickman v. Rhykendall, 143 Barker, Ellis v. 486 Smith V. 397 V. Crosby, 335 V. Koneman, 374 V. McClure, 194 Barkley, Crawford v. 504 Barkley's Estate, 446 Barlow, Church v. 153 V. Scott, 123 V. Smith, 138 Barnard, Rice v. 399, 516 V. Graves, 204 V. Harrington, 126 V. Poor, 94 V. Yates, 508 Barnawell v. Smith, 440, 516 Barnes, Hills v. 155 Rugg V. 105 v. Crandell 178 V. Irwin 485 V. Prevost, 354 Bamett, Nettles v. 124 Troutman v. 161 Vanhook v. 157 V. Stanton, 508 Barney, Gaston v. 208 V. Grover, 190 Barnhill, Peters v. 189 Barnum, Wilson v. 318 Barnwell, Clark v. 119 Barr v. Perry, 200 Barrabine v. Bradhears, 155 Barrere v. Barrere, 491 Barrett, Adams v. 159 Chase v. 404 Lance v. 501 Stearns v. 164 V. Copeland, 125 V. Hall, 317 V. Halls, 507 V. Lewis, 208 V. Swann, 403 V. Thompson, 172 V. Thorndike, 156 Barringer v. King, 199 Barrington, Bank v. 192 Towar v. 210 V. Bank, 155, 392 V. Justice, 71 Barrinton, Shead v. 395 Barron v. Barron, 375 Barrows v. Harrison, 93 Barry, Biggs v. 99 Manella v. 500 Moore v. 425 Odineal v. 162 V. Withers, 519 Barstow, Smith v. 159 Bartholomew, Smith v. 202 v. Bushnell, 510 Bartlett, Miller v. 405 Territt v. 162 V. Jones, 404 V. Wood, 66 Bartlette v. Crittenden, 330 Barton v. Holly, 485 V. Plank Road Co., 159 Bascomb, Appleton v. 189 Bason v. Hughart, 180 Bass, Lyles v. 508 Strong V. 448 Bassett v. Cunningham, 262 Bassier v. Pray, 162 Bastian, Railway Co. v. 504 Basye v. Ambrose, 133 Batchell, Taney v. 144 Batchelor, Rogers v. 397 Bates, Hollingsworth v. 93 Leteher v. 154 Noble v. 133 V. Bank 160 V. Kempton, 423 V. Iron Company,- 504 V. Watson, 159 Batten v. Selleman, 318 V. Taggart, 318 Batty V. Carswell, 502 Baum, Fitzsimons v. 161 V. Stevens, 507 Baxter, Torrey v. 204 V. Rodman 404 V. AVales, 133 Bay, Insurance Co. v. 487 Bayard, Schimmepnich v. 501 V. Atkins, 354 V. Hoffman, 378 Bayles, Adams v. 263 Bayley, Haughton v. 381 Bayne v. Morris, 203 Beach, Bostwiek v. 200 Glass V. 139 XIV INDEX TO AMERICAN CASES CITED. Beach, Hill v. 397 McDonald v. 396 Sturgess v. 383 T. Bank, 408 V. Haywiird, S95 V. Wliite, 374 Beale, Ellis v. 167 Fister v. 125 Phillips V. 348 Plossor V. lao Stosson V. 134 V. Bank, 204 V. Haye?, 132 Beals, Green v. 408 T. Allen, 501 T. Olmstead, 507 Bean, Newman v. 398, 404 V. Farnam, 263 Bear v. Bear, 375 Bearden v. Smith, 133 Beardin, Winchester v. 190 Beardsley v. Warner, 193- Beatie, Rose v. 508 Beattie, White v. 444 Beatty v. Wray, 383 Beauchanip, McMiken t. 155 Beaumont v. Yeatman, 106- Beauton t. Rice, 207 Beaver v. Beaver, 190 Beazley, Reed v. 376 Bebo, Marten v. 486 Beck V. McGillis, 445 Beckar v. Levy, 151 Beckfaam t. Secrest, 378 Williamson t. 486 Beckley, Miller v. 194 Bedell," Ross v. 153 Bedford v. Hunt, 310 Bedient, Bizzel v. 241 Beecker, Andrew? v. 519 Beebee v. Bank, 193 T. D'Baun, 53 T. Miller, 381, 394 V Robert, 509 Beeker v. Beeker, 58 Beekman, Stagg v. 44S Beeman v. Buck, 507 Beer y. Hooper, 241 Beerman, Myers v. 200 Beers v. Haugbton, 240 V. St. John, 66 Beeson t. Beeson, 242 Begley, Evans v. 172 Belcher v. Grubb, 2t)0 Waldo V. 94 Belden, Chandler v. 119 V. Lamb, 161 Belding v. Pitkin, 162 Belknap v. Wendell, 404 Bell, Etheridge v. 354 Livingston v. 210 McCausland, v. 179 Pullen V. 66 V. Hogan, 335 V. Rowland, 139 V. Morrison, 140 V. Newman, 211, 400 V. Quin, 159 T. Troy, 500 Bell, Vaughn v. 105 Weakley v. 194, 203 Bellamy, Despatcli v. 66 Beller v. Block, 94 Belloni, Melburn v. 503 Bellows, Brown v. 132 v. Allen, 125 v. Lovell, 193 Belton V. Cutts, 139 Benbury, Hamilton v. 206 Bendull v. Bendall, 341 Benedict, Bank v. 206 Forney v. 140 Williams v. 180 V. Schaettle, 98 Benniger v. Corwin, 510 Benjamin v. Le Baron, 125 V. McConnell, 392 Benneson v. Thayer, 202 Bennett, Little v. 348 Salmon v. 375 Sherrod v. 139 v. Bank, 374 V. Bennett, 72 V. Buchanan, 189 V. Davis, 172 V. Piatt, 94 V. Robinson, 470 Benny v. Pegrnm, 502 V. Rhodes, 502 Benson, Hickerson v. 166 Hunt v. 384 Rogers V. 370 Vickery v. 156 Bently v. Morse, 140 V. Harris, 378 Berger, Phillips v. 203 Berghaus, Association v. 159 v. Alter, 205 Berkey, Morrison v. 205 Berksdale v. Fenwick, 189 Berlin, West v. 119 Bernard v. Wilcox, 383 Berthold v. Goldsmith, 404 Bertrand, Viser v. 139 V. Byrd, 138 Berry, Brooke v. 53 Dunlap V. 94 Hawkins v. 506 Nave V. 255 Rison V. 262 T. Walker, 160 Berryhill, McKee v. 408 V. Wells, 179 Bestock, Pyle v. 192 Bethea, Gregg v. 354 Betts v. Bagley, 240 Bevan, Borrekins v. 5i'9 Beverly, Ambler v. 404 Peter v. 202. 362 V. Stevens, 262 Bevil V. Hix, 166 Bevin v. Insurance Co., 252 Bevine, Bank v. 503 V. Dord, 509 Bewely, Gregory v. 161 Bickford, Mnhurin v. 178 Willard v. 263 Bickham, Graham v. 133 INDEX TO AMERICAN CASES CITED. XV Bickham, Moore v. 155 Bicknell, Brooks v. 314, 317 Biddes v. James, 162 Biddle, Templeman v. 72 Bidwell, Gay v. 105 Speer v. 263 Bigelow, Deshon v. 94 Biggs V. Barry, 99 Bigelow, Dorman v. 143 Rowley v. 100, 102 V. Denison, 504. Bigham, Price v. 487 Biglow, Parker v. 160 Billingsley, Magee v. 509 V. Bank. 161 Billups, Abby v. 255 Binford, Govan v. 193 Binns v. Woodruff, 330 Bird, Emanuel v. 383, 397 V. Cain, 200 V. Morrison, 384 Birdsall, Brown v. 395 Birkhead v. Brown, 192 Birmingham, Taylor v. 471 Birney v. Richardson, 426 Bisbee v. Hall, 50, 333 Biscoe V. Biscoe, 336 Bishop, Hamilton v. 375 Travis v 105 Tucker v. 354 V. Holcombe, 519 V. Cook, 105 Bispham, Fraley v. 609 V. Patterson, 408 Bissel, Draper v. 408 Heilbron v. 208 Turner v. 404 Bissell, Terry v. 159 Bito V. Porter, 203 Bittenbender v. Railroad Co., 210 Bittinger v. Baker, 72 Bixler, Rice v. 362 Bizzel V. Bedient, 241 Black, Keeman v. 506 Martin v. 143 Slate V. 167 Smith V. 204, 396 V. Black, 384 V. Schooler, 205 V. Stone, 315 V. Struthers, 390 Black's Appeal, 211, 400 Blackford, Howard v. 160 Blackly, Wiser ^. 371 Blackstone v. Blackstone, 444 Blackwell, Aberdeen v. 189 Gilmer v. 182 Potts V. 399 Reading v. 362 Blackweller, Foggart v. 607 Blade v. Noland, 167 Blair v. Williams, 240 Blaisdell, Spencer v. 200 Blake, Brackett v. 65 Coolidge V. 158 V. Low, 425 V. Mutter, 384 Blakeman, Lasley v. 347 Blakeman, Noyes v. 487 Blakeney v. Ferguson, 143 Blakey v. Blakey, 380 Blakey's Ap., 210 Blanc, Hopkins v. 503 Blanchard, Patterson v. 404 Rush V. 357 V. Dyer, 380 V. Coolidge, 405 V. Russell, 242 V. Sprague, 316 Blank, Cresswell v. 384 Blanshaw, Jackson v. 334 Blantier v. Whitaker, 503 Blantin v. Whitaker, 503 Blatzell, Spann v. 202. Blazer, Carson v. 72 Bledsoe v. Thompson, 167 Bleene v. Proudfit, 501 Bleight V. Bank, 362 Blier v. Pierce, 65 Blin, Burton v. 161 Blinn v. Chester, 202 Bliss, Nichols v. 161 Bowser v. 164 V. Perryman, 140 Block, Beller v. 94 V. Walker, 57 Blodgett, Morrison v. 397 Blood V. Richardson, 67 Bloodgood, Johnson v. 442 Bloomer v. Bloomer, 422 V. McQuewan, 314 V. Millenger, 314 V. Stolley, 316 Bloomfield, Fairbanks v. 105 Blount V. Hawkins, 143 Blunt V. Patten, 331 V. Gee, 471 V. Walker, 203 Blystone v. Burgett, 105 Boardman, Reed v. 205 V. Gore, 407 V. Goret, 157 V. Keeler, 395, 404 Boarman v. Groves, 487 Boatwright, AVatson v. 508 Boddie, Boyers v. 160 Body, Holt V. 191 Boerum, Owen v. 263 Bogard v. Jones, 53 Bogardus, Clark v. 448 Bogart V. The Steamboat John Jay, 117 Boggs, Breading v. 211 V. Teackle, 243 Bogue, Deal v. 398 Bohn V. Ileadley, 378 Boiselet, Fries v. 140 Boker v. Crookshank, 211 Bolin V. Iluflnagle, 100 Boiler, Hart v. 205 Bolton, Johns v. 211 Schatzell v. 398 V. De Peyster, 347 V. Lundy, 193 Bonaflfe V. AVoodbury, 205 Bond, Fluck v. 408 V. Smith, 516 XVI INDEX TO AMERICAN CASES CITED. Bonnell, Hanness v. 200 Bonneman v. Sidlinger, 422 Bonney V. Seeley, 189 Bonsall, Smith v. 432 V. Comlv, 62 Boody T. United'States, 206 Boone V. Sinkler, 354 Boorman v. Jenkins, 509 Booth, Babcock v. 125 Comegysr. 192 V. Campbell, 202, 392 V. Northrop, 125 V. Smith, 262 Bopst, Boydv. 510 Borden, Company v. 386 Boring, Hughes V. 397 Borrekins v. Bevan, 509 Borrell v. Dewart, 72 Borry v. Makepeace, 179 Borst, Herriek v. 193 V. Covey, 374 Bosley v. Farquhar, 504 T. Porter, 205 Bossier, Demi v. 72 Bostick V. Winton, 351 Boston, Cummins v. 373 V. Bodge, 138 Bostwiek. Champion v. 404 T. Beach, 200 Boswell V. Green, 94 Botsford T. Sandford, 161 Boughton V. Bank, 195 Boulton, Norcross v. 125 Bourie, Lumden v. 200 Bourland, Gibbs t. 200 Boutelv. Owens, 172, 174 Boutellev. Melendy, 159 Boutwell V. Mason, 205 Bovard, McLaughlin v. 202 Bowditch V. Green, 190 Bowdre v. Hampton, 390 Bowen, Clark v. 203 V. Caldwell, 52 V. Burk, 94 Bower t. Tallman, 52 V. Tiernan, 192 Bowers, Heard v. 132 Lovejoy v. 397 T. Bowers, 162 V. Hurd, 421 V. Jewell, 154 T. Stile, 393 Bowers's Est. 191 Bowes V. French, 262 Bowie, Addison v. 357 Carroll v. 191 Fouke V. 206 Owens V. 241 Bowles V. Woodson, 144 Bowman, Hill v. 346 Ridgway v. 99 V. Bailey, 404 V. Kennedy, 120 V. McKleroy, 105 Bowman's Ap., 354 Bowser v. Bliss, 164 Boyce, Pride v. 191 Sherman v. 162 Boyce v. Coster, 383 Boyd, Bank v. 160 Bvrd V. 339 Collins V. 189 Hughes V. 470' Keito V. 125 Pierson v. 153 V. Bopst, 510 T. Boyd, 157 V. Browne, 126 T. Grant, 196 V. Hitchcock, 202 V. McConnell, 156 V. Mosely, 99 V. Talbert, 333 Boyer v. Aurand, 262 V. McCulloch, 144 V. Williams, 73 Boyers V. Boddie, 160 V. Elliott, 384 Weatherhedd v. 160 Boykin v. Watson, 390 Boyle, Hyatt v. 507 V. Rankin, 52 V. Roche, 78 V. Zacharie, 241 Boylston v. Greene, 519 Boyne, Archer v. 33 Boynton, Turrill v. 193 V. Hubbard, 162 V. Rees, 127 Wright V. 504 Bozeman v. Bank, 392 Bracken v. Ballentine, 200 Brackett v. Blake, 55 Bradenbach, Hammer v. 133 Bradbury v. Smith, 398 Bradford, Ferrall v. 204 Mount V. 243 Reese v. 399 Sawyer v. 194 V. Bush, 507 Y. Greenway, 487 V. Manly, 509 V. Marvin, 190 Bradhears, Barrabine v. 155 Bradish v. Gibbs, 485 Bradley, Cook v. 139 Davis V. 99 Dinsmore v. 241 Dobbin V. 192 Fay V. 207 V. Burwell, 390 V. Hunt, 422 , V. Mitchell, 53 V. SpafFord, 190 Bradstreet v. Heran, 119 Brady, Hill t. 208 Brady, Thomas v. 159 V. Colhoun, 386 Braham v. Le Roy Pope, 134 Brainard v. Cowdry, 444 V. McDevitt, 143 Braman, Srigg v. 190 V. Hawk, 192 V. Hess, 161 Branch, Robertson v. 204 Brander v. Ins. Co., 503 INDEX TO AMERICAN CASES CITED. XVll Brandon, Powell v. 335 V. Bank, 78 Branning v. Taylor, 172 Brannon, Qiiarles v. 161 Brantley v. Thomas, 509 Braston, Whiting v. 67, 69 Bratten, Herdman v. 155 Bratton v. Clawson, 66 Brawdy v. Brawdy, 144 Bray, Tahnme v. 125 V. Dudgeon, 373 Braynard v. Marshall, 242 Brazier, Allen v. 133 Breading v. Boggs, 211 Breasley v. Cox, 53 Breaux, Lalande v. 161 Breed, Osgood v. 485 V. Hillhouse, 140 Breen, Higgins v 125 Brengle, Creager v. 191 V. McClellan, 180 Brenizer, Morrow v. 362 Brenizet, Morrow v. 58 Brennan, Osborne v. 406 Brenneman, English v. 154 Brenton v. Davis, 509 Brereton, Shreve v. 132 Brewer, Champion v. 55 Curtis V. 134 V. Brewer, 143 V. Knapp, 206 V. Mills, 191 V. Smith, 90, 94 Brewster, Jenkins v. 519 Patterson v. 385 V. Edgerly, 134 V. Hammett, 398 V. Hill, 50, 333 V. Sterrett, 384 Wait V. 204, 404 Brice v. Edwards, 193 Bridge v. Hubbard, 161 Bridge Company v. Kline, 159 V. Shannon, 396 Bridges v. Wood, 376 Bridgham, Hunt v. 193 Brian, Grove v. 191 Briggs, Baker v. 191 Manwell v. 125 Moore v. 202 Preston v. 66, 69 Townsend v. 138 V. Brown, 72 V. Dorr, 518 V. Williams, 206 Brigham, Coolidge v 510 Emerson v. 509 v. Dana, 404. V. Moreau, 160 V. Weaver, 105 Bright V. Rowland, 133 Brimhall, Upham v. 160 Brinager v. Phillips, 192 Brinker, Roberts v. 353 Brinkerhoff v. Lawrence, 425 V. Marvin, 172, 401 Brinsley, Prescott v. 193 Briscoe, Givens v. 191 Britain v. Israel, 505 Brittain, Patton v. 503 Brittin, Freeman v. 161 Britton's Appeal, 63 Broadfoot, Gibson v. 262 Broadnax, Suydam v. 242 Broadwell v. Broadwell, 133 Brockway, Chappell v. 164 v. Burnap, 404 V. Clark, 133 Brockenbank, Davis v. 72 Brockenborough, Richards v. 262 Bromley v. Elliott, 404 Bronson v. Fitzhugh, 372 V. Newberry, 240 Brooke, Grubb v. 178 Smith V. 206 V. Berry, 53 V. AA'^ashington, 384 Wynn v. 189 Brooks, Fowler v. 192 Harris v. 194 Jarvis v. 384, 397 Lowry v. 403 Moore v. 335 The People v. 491 V. Bicknell, 314, 317 V. Dent, 374 V. Hanford, 54 V. Hubbard, 134 V. The Brig Seneca, 117 V. White, 202 Broomhead, Donath v. 98 Brothers v. Cartwright, 362 Broughten v. Badgett, 56 Browder, McGrew v. 498 Brower, Manhattan Company v. 172 Brown, Andrew v. 383, 408 Bacon v. 206, 506 Bank v. 206, 375 Birkhead v. 192 Briggs V. 72 Case V. 317 Cutler V. 125 Gossin V. 190 Gragg V. 84 Gray v. 392 Griswold v. 127 Harris v. 374 Hicks V. 160, 242 Howard v. 193 Jones V. 422 Lonsdale v. 138 Love V. 153 Milliken v. 202 Noyes v. 55 Parker v. 433 Riggins V. 192 Scotien v. 143 Smith V. 202 Swelt V. 502 Thompson v. 180, 516 Treadwell v. 401 V. Anderson, 516 V. Bank, 55 V. Bellows, 132 V. Birdsall, 395 V. Brown, 423 XVlll INDEX TO AMERICAN CASES CITED. Brown v. Collins, 139, 242 V. Deloach, •'{,') 7 V. Dillabunly, 240 V. Fort, 152 V. Harrison, 161 V. Jackson, 202 T. Kidd, 1!I4 V. Lang, 190 V. Marsh, 392 V. McFarland, 383 V. Mott, lOS V. Murphee, 509 V. Pinkhain, 155 V. Porter, 516 V. Public Administrator, 180 T. Kiggins, 192 V. Riker, 1(57 V. Sockwell, 357 V. Tappan, 159 V. Webb, 105 Wright V. 486 Brown's Appeal, 395 Browne, Boyd v. 126 Watson V. 242 Brownfield, Baily v. 189 Browning v. Grady, 394 V. Magill, 498 Brownlow, Frazier v. 487 Brubaker v. Okeson, 19S Bruce v. Davenport, 500 V. Lee, 162 Bruen v. Ogden, 53 Brummett v. Golden, 12& Brune, Enders v. 190. Brunnan, Johnson v. 201 Brunson, Isler v. 160 V. Brunson, 423 Brush, Clement v. 408 V. Blanchard, 357 Brutton, Banfield v. 506 Bryan, Cornish v. 55 Fuller V. 200 V. Bryan, 490 Weem v. 72 Bryant, Gibbs v. 189 Gooch V. 156 Gruse V. 126 V. Crosby, 94 V. Moore, 501 Bryson, Edney v. 42S Buchan v. Sumner, 384, 397 Buchanan, Bennett v. 189 Gordon v. 501 Polk V. 404 Risley v. 203 Toumin v. 378 V. Pue, 427, 445 Wilson V. 378 Buck, Beeraan v. 607 Hewitt V. 117 Powell V. 502 V. Albee, 159 V. Pike, 255 V. Winn, 384 Buckingham, Butler v. 487 V. Burgess, 406 V. Oliver, 394 T. Reeve, 334 Buckley, Reed v. 353 V. Buckley, 386 v. Furness, 98 Buckner v. Finley, 241 Budd v. Hiler, 72 Buddicum v. Kirk, 203 Buddington v. Stewart, 82 Buell, Sparhawk v. 357 Buffington v. Curtis, 119 V. Gerrish, 52 BufFum, Griffith v. 395, 404 V. Merry, 89 Bulkley v. Landon, 138 V. Wright, 389 Bull, Doll v. 160 Holden v. 172 Ryan v. 375 V. Bull, 346 V. Schuberth, 405 Bullen V. McGillicuddy, 202 Bullett, Jones v. 202 BuUict's Appeal, 446 Bullock, Jones v. 192 Burbank, Greenleaf v. 144 v. Whitney, 346 Burch, Thornton v. 334 Burchard, Bank v. 161 Burchell v. Marsh, 263 Burd V. Burd, 354 V. Smith, 210 Burdett, Clark v. 200; Burdick v. Given, 204 Burditt V. Hunt, 105 Burgess, Buckingham v. 406 Lugg V. 160 V. Clark, 200 V. Gates, 127 Burgett, Blystone v. 105 Burgoyne v. Company, 390 Burgwin v. Hostler, 383 Burhans, Hicks v. 138 Burk, Bowen v. 94 Burke, Faunce v. 133 v. Noble, 393 Burkhart v. Sappington, 179 Burkholder, Strickler v. 193 Burkle v. Eckart, 404 Burley, Hilton v. 207 Burlingame, Talmadge v. 192 Burnap, Bruckaway v. 404 Burne v. Moore, 207 Burnhan v. Ayer, 155 Weekly v. 138 Barnley v. Lambert, 427 Burns, Durden v. 335 V. Bank, 191 Burnside, Sampson v. 144 V. Marick, 384 Burr, NefF v. 172 v. Duryee, 317 V. Sim, 362 Burrage v. Crump, 133 Burrall V. Acker, 398 Burritt v. Burritt, 491 Burrits v. Rench, 504 Burrows, Turner v. 117 V. McWhann, 190 Burry, Nesbit v. 86 INDEX TO AMERICAN CASES CITED. XIX Burson v. Kincaid, 392 Burton v. Blein, 161 V. Stevens. 140 Burtus V. Tisdale, 397 Burwell, Bradley v. 390 Burzell, Bagley v. 192 Busby V. Finn, 160 Bush, Adams v. 172 Bradford v. 507 Mather v. 242 V. Fowler, 204 V. Lathrop, 65 V. Sheldon, 432 Bushnell, Bartholomew v. 510 Buss, AVhite v. 167 Bussard, Whelzel v. 140 Bussel, Pugh V. 242 Bussing, Bailey v. 140 Bussy, Gilmore v. 204 Butler, Penn v. 381 Seymour v. 393 V. Buckingham, 487 V. Lewis, 172 V. Miller, 204 V. Page, 66 V. Railroad Co. 57 V. Ricketts, 374 V. The Mayor, 262 Wooden v. 55 Butterfield, Witham v. 105 Butterworth v. McKinley, 90 Butts V. Dean, 203 Byerly, Meyers v. 162 Byers v. McClanahan, 156 Byrd, Bertrand v. 138 V. Boyd, 339 V. Gasquet, 179 V. Holloway, 441 V. Odeur, 262 Byrne v. Byrne, 448 Byrod's Appeal, 374 Byxbie v. Wood, 54 Cabeen v. Campbell, 99 Cabot, Denny v. 404 Welsh V. 257 Cadbury v. Duval, 365 Cadet, Levy v. 195 Cady, Stephens v. 330 Gaffe, Zellweger v. 153 Cain, Bird v. 200 Caldwell, Banker v. 330 Bowen v. 52 Fitzgerald v. 178 Foster V. 507 Graff V. 119 V. Garner, 93 V. Kinkhead, 448 V. Porcher, 508 V. Renfrew, 423 v. Smith, 511 V. Stileman, 383 V. Wentworth, 206 Calef V. Foster, 503 Calhoun v. Calhoun, 486 V. Vechis, 608 Calkins v. Lockwood, 55 Call, Eagan v. 507 V. Gray, 105 Rossian v. 206 V. Ewing, 441 Callagan v. Hallett, 162 Calloway, Pugh v. 62 Calvert, Carter v. 263 Turner v. 160 Camac, Fairehild v. 172 Cambioso v. Moffett, 162 Cameron, Bank v. 502 v. McFarland, 162 Pierce v. 408 Thomas v. 433 T. Ward, 143 V. Wurtz, 180 Cammack, Gillespie v. 153 V. Johnson, 399 Camp, Abrams v. 166 Arnold v. 202 Gillett V. 357 Vassar v. 403 Vliet V. 158 V. Camp, 105 V. Root, 202 Campbell, Booth v. 202, 392 Cabeen v. 99 Cocke v. 503 Fisher v. 601 Gardner v. 52 Hill v. 189 Parsons v. 68, 71 Vance v. 471 Vaughan v. 508 V. Baker, 189 V. Canon, 172 V. Kent, 172 V. Renvviek, 127 Canal Company, McDowell v. 207 Randel v. 262 V. Fisher, 66 Candler v. Dinkle, 364 Canfield, Hamilton v. 159 Sconelle v. 160 V. Ives, 202 White v. 241 Candor's Appeal, 186, 424 Cannaday v. Shepard, 65 Cannon, Taber v. 503 Canon, Campbell v. 172 Cantril, Huston v. 375 Cantrill, Huston v. 376 Capehart, Gums v. 286, 426 Capel v. McMillan, 348 Capen v. Alden, 207 Cardwell v. Cheatham, 365 Garland, Nelson v. 240 Carleton v. Whitcher, 159 V. Woods, 159 Carley v. Wilkins, 607 Carlisle, Bankhead v. 471 Collins v. 347 V. Wallace, 87 Carlton v. Mill, 196 Carman v. Noble, 140 Carnley, Hall v. 105 Kemp v. 408 XX INDEX TO AMERICAN CASES CITED. Carnochan v. Gould, 509 Carnult v. Roberts, 144 Carothers, Murniy v. 502 Carow, Hoffman v. 49S Carpenter, Hulibell v. 195 V. Devon, 191 V. Heard, 354 V. Kins, 194 V. Lockhart, 132 "Weed V. 504 Carr, Hoxie v. 384, 399 V. Allison, 138 V. Crain, 347 V. Le Fevre, 56 McCriiry v. 203 Carrington v. Didier, 200 Carroll, Bank v. 1 92 McTavish v. 206 , Siatter v. 383 V. Bowie, 191 T. Lee, 373 V. Nixon, 140 V. Tylor, 162 Carruth, Hogshead v. 200 Carry v. Sarer, 133 Carsley v. Lindsay, 262 Carson, Harris v. 72 McLain v. 383 Mowatt V. 348 Satterwhite v. 178 Stuart V. 180 T. Baillie, 608 V. Blazer, 72 V. Clark, 138 V. Monteio, 204 V. Murray, 376 Young V. 444 Carswell, Beatty v. 503 Carter, Baldwin v. 373 Calvert v. 206 Clarkson v. 395 Glisson V. 126 Gower v. 133 Parker v. 138 Robert v. 55 Scrugham v. 397 V. Calvert, 263 V. Connel, 393 V. Thomas, 442 Welsh V. 507 Cartwright, Brothers v. 362 V. Gardener, 134 V. AVilmerding, 99 Caruth v. Thompson, 151 Case V. Brown, 317 V. Riker, 162 Cash, Clement v. 133 Cason V. Cason, 442 V. Cheely, 95 Cassidy, McAlpin v. 504 Cassily v. Meyer, 334, 354 Cassilly v. Rhodes, 72 Castator, Reichart v. 376 Castleman v. Holmes, 205 Castner v. Styer, 200 Caswell, Jones v. 162 Cathcart, Aiken v. 153 V. Robinson, 375 Cathey v. Cathey, 347 Catlin V. Gilder, 407 Caton V. Shaw, 161 Catron, Gaines v. 384 Napier v. 408 Caulk, Wiokes v. 156 Causay, Tyre v. 507 Cave, Costelo v. 203 Cavalier, Fletcher v. 155 Cavender v. Guild, 179 Cebra, Roosevelt v. 240 Centre Valley Compapy, Allen v. 399 Chace v. Hinnian, 189 Chadbourne, Dublin v. 432 Chadsey v. Lewis, 57 Chaffee v. Company, 314 Chalk V. McAlly, 127 Chamberlain, Hinds v. 159 V. Badgley, 134 V. Madden, 408 V. Maitland, 178 Chambers, Donaldson v. 242 Evans v. 317 Haddena v. 190 Kennett v. 162 Parker v. 426 V. Denie, 173 V. Harger, 173 V. Hunt, 380 Champion v. Bostwick, 404 V. Brewer, 55 Champlain Co., Cook v. 67 Champlin, Tillinghurst v. 384, 401 V. Champlin, 376 Chanceller v. Wiggins, 510 Chancey, Cocke v. 204 Chandler, Cleveland v. 433 Snow V. 394 ^T. Beldon, 119 V. Davidson, 143 V. Glover, 140 Chapin, Gilbert v. 345 Pearsoll v. 159 V. Clemitson, 172 v. Potter, 93, 94 Chapline v. Scott. 207 Chapman, Everett v. 395 Johnston v. 189 Martin v. 262 V. Devereaux, 404 V. Gray, 485 V. Murch, 506 V. Steinmetz, 204 Chappell, Mason v. 508 V. Brockway, 164 Charles, Lidenbender v. 162 Charlton v. Lay, 510 Chase, Allen v. 262 Goddard v. 70 Jackson v. 156 V. Allen, 134 V. Barret, 404 V. Lockerraan, 445 V. Ralston, 93 r. Redding, 423 Chatterman, Teomans v. 162 Chave, Pettigrew v. 153 Cheatham, Cardwell v. 365 INDEX TO AMERICAN CASES CITED. XXI Cheddick v. Marsh, 132 Cheek v. Glass, 193 Cheely, Cason v. 95 Cheep V. Wheatley, 125 Cheeseborough v. Millard, 190 Chegaray, The People v. 489 Chelsey v. Frost, 155 Cherry v. Clements, 487 Cheshire, Leary v. 196 Chester, Blinn v. 202 T. Greer, 426 Cheston v Wheelwright, 206 Chesturn v. Johnson, 203 Chevallier v. Wilson, 421 Chew, Griffith v. 393 V. Nicklin, 363 Chew's Ap., 353 ChifFelle, Whislow v. 384 Chidsey, Siegel v. 210 Chighizola v. Le Baron, 353 Child, Voorhis v. 383 V. Adams, 308 Chippenger v. Hopbaugh, 162 Chisin v. Woods, 510 Chollar, Sage v. 397 Chomqua v. Mason, 504 Chouteau, McQueen v. 123 T. Suydam, 440 Chrisman, Turner v. 140 Christ, Snyder v. 375 V. Christ, 284 Christian, Davis v. 365, 384 V. Christian, 354 T. Dripps, 66 V. Ellis. 397 V. Smith, 160 Christler t. Meddis, 445 Church, Davis v. 383 • Goodrich v. 200 Mather v. 52 V. Barlow, 153 V. Church, 375 T. Knox, 398 v. Moore, 189 V. Stockton, 365 Churchill v. Perkins, 162 Churchwardens v. Peytavin, 133 Cilley V. Huse, 384 Ciples v. Alexander. 442 City V. Desnoyer, 394 V. Johnson, 123 V. Merlatt, 207 v. Reeves, 389 Claggett, Salmon v. 190, 392 V. Kilbourne, 385 Clapp, Shippen v. 156 Claribon v. Goodloe, 390 Claridge, Livermore v. 207 Clark, Bain v. 72 Brockaway v. 133 Burgess v. 200 Carson v. 138 Dyer v. 384 Enew V. 173 Harris v. 421 Jenkins v. 193 Kirby v. 125 Clark, Niblo v. 192 Pyle V. 192 V. Adair, 53 T. Allee, 398 V. Badgely, 161 V. Barnwell, 119 V. Bogardus, 448 v. Bo wen, 203 V. Burdett, 200 T. Foxcroft, 189 V. Hatch, 242 V. Herring, 140 V. Hopkins, 171 V. Keenan, 125 V. Maguire, 140 V. Makenna, 486 V. Mallory, 78 V. Miller, 395 V. Pendleton, 143 V. Roger, 519 V. Rosenda, 240 V. Skinner. 52 V. Tucker, 144 Whitall V. 485 Wilkes V. 395 Wilson V. 144 Clarke, McCraeken v. 263 Railroad Company v. 204 V. Covington, 194 V. Howe, 383 v. Jenkins, 441 V. McClelland, 125 V. Pratt, 179 Clarkson v. Carter, 395 Clason V. Morris, 190 Clay, Goodloe v. 191 Sheftall V. 518 V. Cottrell, 408 V. Hart, 362 V. Smith, 242 Clayton, Davis v. 200 Dunham v. 404 V. Warden, 441 Clawson, Bratton v. 66 Cleason, Iron Company v. 200 Cleghorn v. Bank, 400 Clemens v. Davis, 86, 94, 378 Clement, Hall v. 207 Miller v. 72 V. Brush, 408 V. Cash, 133 V. Hadock, 404 Weimer v. 507 Clements, Cherry v. 487 Dunn V. 156 Clementson v. Williams, 140 Clemitson, Chapin v. 172 Clemmons, Oberman v. 362 Clemson, Babb v. 155 Clendaniel v. Hastings, 158 Cleveland, McCauley v. 404 Reynolds v. 395 Scott V. 207 V. Chandler, 433 Clevenetine's Appeal, 335 Clifton, Lapice v. 497 Clinkenbeard, Cloud v. 448 XXll INDEX TO AMERICAN CASES CITED. Clippenger v. Cripps, 192 Cloasen v. Shaw, 1(50 Clopper V. Bank, 153 Close, Harrison v. 392 Cloud V. Clinkenbeard, 448 V. Dupree, 373 Clough V. Ray, 87 Clow, Merrit v. 200 Clurg, Hays v. 203 Clute, Hour v. 203 Clyburn, Stueky v. 510 Coachman v. Hunt, 57 Coal Cc^npany v. Dyott, 486 Coal Company's Appeal, 408 Coalter, Harkins v. 375 Coates, Perry v. 200 V. Gerlaoh, 374 V. Hughes, 431 Coates's Appeal, 346 Coats V. Robinson, 487 Cobb, Dix V. 55, 56 Dows V. 120 ^Hateh v. 123 ^piavnes v. 161 V. Titus, 161 Webster v. 151 Cobeau, Schriver v. 354 Coburn, Atwood v. 139 Mixer v. 508 Cochran, Hicks v. 485 Temple v. 200 Trice v. 510 V. Loring, 200 V. Richardson, 503 Cocke V. Campbell, 503 V. Chancy, 204 V. Trotter, 126 Cockerill, Allen v. 507 Codd V. Codd, 490 Coder v. Huling, 384 Cody, Lowe v. 477 Coe, Everitt v. 403 V. Wilson, 200 Coffield, AVard v. 448 Coffin V. Anderson, 78 V. Cottle, 262 V. Elliott, 341 V. Jenkins, 404 Coker v. Crozier, 125 Colbert, Cowan v. 195 Curan v. 192 Colby, Atkins v. 99 Paddock v. 140 V. Copp, 208 Colcock, Greenwood v. 162 Coleord, Bank v. 190 Cole County v. Augbey, 190 Cole, Barfield v. 105 V. Patterson, 335 T. Sackett, 203 V. Trull, 208 V. White, 105 Colegate v. Savings Institution, 191 Coles, Dawson v. 57 Harring v. 357 V. Kelsey, 140 Coleman, Fletcher v. 486 Seltzer v. 203 Coleman v. Lukens, 263 V. Wade, 263 Colfax, Debow v. 72 Colgate, Swelt v. 608 Colhoun, Brady v. 386 Wheatley v. 384 Colladay v. Baird, 330 College V. Powell, 374 Collender, Hamilton v. 205 Collier, Molyneaux v. 202 V. Slaughter, 471 Collins, Brown v. 139, 242 Green v. 348 Shuraway v. 339 V. Boyd, 189 V. Carlisle, 347 V. Makepeace, 156 V. Merrell, 167 V. Ragrew, 167 V. Row, 144 Wylly V. 486 Collison V. Little, 381 Collumb V. Read, 384 Colomb V. Bank, 371 Colt, Gibson v. 503 Nutting V. 404 Colter V. Greenhagen, 138 Colton, Terhune v. 206 Colts, Lytle v. 172 Colvin, Reppart v. 408 Warford v. 432 Colwell, Tritts v. 475, 519 V. Alger, 442 Com. V. Tuqua. 54 Combs, Hodge v. 501 Comegys v. Booth, 192 V. Vasse, 54, 55 Comfort V. Duncan, 72 V. Mather, 341 Comline, Humphreys v. 507 Comly, Bonsale v. 52 Commander, Gourdin v. 157 Commission Company, Mann v. 501 Commissioners, Commonwealth v. 122 Doyle V. 167 Howe V. 122 Niles V. 262 Reynolds v. 50, 333 V. Perry, 138 Commonwealth, Hayes v. 173 Mckee V. 206 Richards v. 192 Speck V. 205 Nimmo v. 180 V. Addicks, 490 V. Conrad, 173 V. Commissioners, 122 V. Cox, 196 V. Fee, 491 V. Haas, 191 V. Hamilton, 492 V. Harrington, 162 V. Letcher, 205 T. Lewis, 180 V. Martin, 362 T. Miller, 178, 191, 203 V. Nutt, 489 V. Robbins, 167 INDEX TO AMERICAN CASES CITED. XXlll Commonwealth v. Sears, 490 v. Stauffer, 470 V. Vanderslice, 78, 207 Company, Burgoyne v. 390 Chaffee v. 314 Mannv. 161 Sherman v. 510 V. Company, 407 V. Borden," 386 V. Earle, 315 V. Foster, 486 Winans v. 317 Compton V. Martin, 144 Comstock V. Farnum, 518 V. Smith, 138, 204 Cone, Whitaker v. 162 Congar v. James, 263 Congdon, Bitts v. 191 Conine, Wilson v. 397 Conklin, Wickham v. 162 Conkling v. Washington University, 397, 404 Conlin, Maybin v. 162 Conn V. Conn, 487 Connell, Carter v. 393 Conner, Stewart v. 441 Conover, Sears v. 55 V. Conover, 139 V. Satchwell, 426 Conrad, Commonwealth v. 173 Barker v. 208 Hopkins v. 208 Conroy v. Warren, 497 V. Woods, 400 Consequa, Willing? v. 204, 389, 392, 507 Constant, Hall v. 205 Woolley V. 156 Converse v. Converse, 485 Conway, Jarnagin v. 346 Rector v. 440 Conwell, Longworth v. 500 V. Dandridge, 156 Cook, Bishop V. 105 Coltv. 362, 491 Freeman v. 370 Gibson v. 314 Newport v. 357 Norton v. 240 Phillips V. 398 V. Bradley, 139 V. Champlain Co., 67 V. Moffat, 241 V. Mosely, 507 V. Patterson, 78 V. Thayer, 105 Ware V. 353 Cooke, Hargreaves v. 206 V. Husbands, 486 Cookson, Hyde v. 87 Cooley, Hill v. 155, 156 Coolidge, Blanchard v. 405 V. Blake, 168 V. Brigham, 510 Coonley, Anderson v. 501 Cooper, Lightburn v. 510 Ludlow V. 384, Munroe v. 497 Robbins v. 401 Cooper, Robinson v. 510 Shaw v. 316 v. Cooper, 334 V. Crane, 127 V. Hepburn, 354 Cooper's App., 400 Cope, Dawes v. 119 Johnson v. 508 V. Smith, 193 Copeland, Barrett v. 125 Parsons v. 66 Richardson v. 66 Copp, Colby v. 208 Coppage V. Alexander, 471 Coppedge v. Threadgill, 477 Corbit, 0-Conner v. 127 Cordle v. Cordle, 334 Corley v. Wilkins, 506 v. Williams, 162 Corliss V. McLagin, 66 Cornan v. State, 192 Cornelius v. Cornelius, 490 Cornell, Dyer v. 363 Jackson v. 397 V. Lovett, 471 V. Masten, 392 Cornett v. Doolittle, 200 Cornish, Jeffrey v. 203 V. Bryan, 55 Cornwell, Nelson v. 285 V. Gould, 205 Cornwell's App., 189 Corrington, Haynes v. 193 Corser v. Craig, 518 Corwin, Beninger v. 510 Middlebrook v. 67, 71 Corwithe, Penny v. 156 Coryell's App., 380 Costello v.Cave, 203 Coster. Boyce v. 383 Lorillard v. 362 Coston, Wallace v. 486 Coterill v. Vandusen, 406 Gotten, Mitchell v. 161 Cottle, Coffin V. 262 Cotton, Singleton v. 421 Cottrell, Clay v. 408 Couch V. Mills, 394 Coudry, Hubbell v. 180 Coulon V. Morton, 162 County V. Armstrong, 56, 498 V. Hackett, 498 V. Harding, 127 V. Stete, 123 Courcier v. Ritter, 504 Cousins, Parker v. 161, 202, 393 Coutant V. Schuyler, 422 Covell V. Hitchcock, 98 Covenhoven, De Hart v. 263 Covey, Borst v. 374 Covington, Clark v. 194 Cowan v. Adams, 502 V. Colbert, 195 V. Shields, 519 V. Wheeler 504 Cowell, R. R. Co. V. 504 Cowden, Bank v. 171 Williams v. 471 XXIV INDEX TO AMERICAN CASES CITED. Cowdin V. Perry, 353 Cowdry, Brainerd v. 444 Cowing, Netson v. 603 Cowles, Dougal v. 203 Cowls V. Cowls, 490 Cos, Breasley v. 53 Commonwealth v. 195 Griffith V. 155 Haynesworth v. 347 Schofield V. 200 V. Delano, 404 V. Hoffman, 504 V. Marrow, 63 T. McBurney, 385 T. McKenney, 426 V. Robinson, 503 « Coxe, Ewer v. 319 Cozzens, Wheelock v. 5S Cozzins V. Whitiiker, 508 Crabb v. Bank, 178 Crabtree v. Green, 262 Warren v. 169 Craft, Holland v. 362 Crafts, Lamb v. 507 Craggin, Balcolm v. 138 Craig, Corser v. 518 Peters v. 262 Smith V. 93 r. Craig, 262, 421 T. Dale, 72 V. Leslie, 362 V. State, 162 Walker y. 440 Williams v. 260 Crain, Carr v. 347 Craine, Massey v. 138 Crammond, Perry v. 153 Phillips V. 385 Crandell, Barnes v. 178 Crandon, Bacon v. 262 Crane, Cooper v. 127 Parker v. 138 T. Ailing, 389, 392 V. French, 408 Crary, Bank v. 105 Williams v. 448 Cravarth v. Plympton, 126 Crawford, Dalzell v. 365 Marcy v. 158 Patterson v. 57 T. Barkley, 504 V. Merrel, 159 T. Smith, 93 T. The William Penn, 259 T. Wilson, 508 Creager v. Brengle, 191 Creath v. Sims, 194 Creditors, Dorsey v. 152 Cremer v. Higginson, 206 Crenshaw, Edmonds v. 441 Harris v. 127 Crepps, Clippenger v. 192 Cresson v. Stout, 67 Creswell, Gillespie v. 189 V. Blank, 384 Crews V. Pendleton, 72 Crim, Edick v. 510 Crippen, Fremont v. 123 Crisler v. McCoy, 206 Crist V. Crist, 426 Crittenden, Bartlette v. 330 Crocker v. Man, 53 V. Whitney, 55 Croft V. Moore, 191 V. White, 156 Crocker, Reed v. 349 V. Gullifer, 78 Cromwell, Maccubbin v. 371 V. Holly, 194 V. Lovett, 204 Crook, Nolen v. 200 V. AVillianis, 162 Crooker, Smith v. 154 V. Crooker, 400 Crookehank, Boker v. 211 Crosby, Bank v. 192 Barker v. 335 Bryant v. 94 Gray v. 134 V. Wendell, 471 V. Wyatt, 192 Cross, Law v. 504 Crossland v. Murdock, 432 Crosswell v. Allis, 105 Crostwaight v. Hutchinson, 375 Crougbton v. Duval, 193 Crouse, Lyne v. 486 Crowninshield, Sturges v. 240 Croy, Snyder v. 125 Crozier, Coker v. 125 Cruger v. Armstrong, 497 v. Cruger, 485 V. Douglass, 485 T. Haywood, 357 V. Heyward, 335 Crugett, Rivers v. 510 Crummie, Norris v. 193 Crump, Burrage v. 133 V. McMurtry, 190 Crumpston v. McNair, 189 Cruse V. McKee, 348 Crutwell V. De Rossett, 408 Cubberly, Mount v. 125 Cuculla, Perotin v. 503 Culber, Danforth v. 139 Culbertson, Reany v. 502 Speelman v. 440 Cullum V. Emanuel. 190 Culver, Allen v. 206 Mundy v. 134 Culvertson, Parker v. 189 Cumming, Gardiner v. 383 V. Williamson, 486 Cummings v. Cummings, 357 V. Hackley, 204 Cummins, Dennis v. 133 Richardville v. 55 V. Boston, 373 Cunard v. Insurance Company, 259 Cunningham, Bank v. 153 Bassett v. 262 V. Ashbrook, 93 V. Garvin, 138 V. Hall, 509 V. Spier, 607 T. Wrenn, 193 INDEX TO AMERICAN CASES CITED. XXV Cunningham, West v. 508 Cunnington, Dott v. 335 Curan v. Colbert, 192 Curcier v. Pennock, 508 Curie, Steele v. 162 Currie v. Steele, 425 Currier v. Howard, 57 Curtis, BufSngton v. 119 Greenwood v. 160 Kellog V. 133 T. Brewer, 134 V. Hubbard, 204 Curvey, Walker v. 200 Gushing v. Wyman, 203 Cusbman, Noyes v. 404 Cuthbert v. Cuthbert, 445 Cutler, Lupton v. 200 Tingley v. 134 V. Brown, 125 V. Emery, 196 V. How, 133 Weld V. 106 Cutter, Reed v. 312, 316 V. Doughty, 348 V. Thomas, 406 Whittemore v. 316 Cutting V. Gilman, 421 AVhitemarsh v. 72 Cutts, Belton v. 139 Price V. 207 Cutwright. Green v. 72, 73 Cuyler v. Ensworth, 190 D. Dahlgreen v. Duncan, 401 Daily v. Litchfield, 133 Dain, Wells v. 262 Dakin, Holden v. 507 V. Williams, 132 Dale, Craig v. 72 Holland v. 519 Miehener v. 421 V. Lincoln, 422 Dall, Mitchell v. 206 Dallam v. Wampole, 485 Daly, Feeny v. 139 Dalzell V. Crawford, 365 Dana, Brigham v. 404 V. Bank, 210 V. Lull, 125 Dandridge, Conwell v. 156 V. Dorrington, 471 Dane v. Baldwin, 498 Danforth v. Culber, 139 V. Evans, 166 Daniel, Kinnard v. 374 United States v. 125 V. Daniel. 53, 263 V. Nelson, 408 Whiting V. 157 Daniels, Bank v. 205 Barbaren v. 56, 497 V. Hatch, 203 V. Pond, 67, 71 Danville Bridge Co. v. Pomeroy, 133 Darby v. Mayer, 432 Dare, Linney v. 383 Darling, Levfis v. 284 v. Simpson, 380 Darlington v. Gray, 203 Dashiel v. Dashiel, 336 Dashiell, McCullough v. 397 Davenport, Bruce v. 500 Ives v. 503 McGran v. 335 V. Hardeman, 191 V. Lacan, 200 V. Mason, 138 V. Sleight, 167 V. Woodbridge, 518 Weire v. 54 Davidson, Chandler v. 143 V. Graves, 374 V. Kelly, 408 Davies, Emerson v. 330, 371 Thompson v. 162 Davis, Bakpr v. 66, 70 Bennett v. 172 Brenton v. 509 Clemens v. 86, 94, 378 Hitch V. 421 Hubbard v. 193 Lindsay v. 508 Mackie v. 189 Marshall v. 52 McClanahan v. 284, 487 Napier v. 471 Ormsbee v. 408 Pintard v. 196 Presley v. 357 Ross v. 285, 427 Salmon v. 381 Stickney v. 445 Tuthill V. 161 V. Anable, 204 T. A New Brig, 82 V. Bradley, 99 V. Brockenbank, 72 V. Christian, 365, 384 V. Church, 383 V. Clayton, 200 V. Desauque, 202 v. Herrick, 375 V. Hill, 94 V. Maxwell, 262 V. Meeker, 507 V. Morris, 172 V. Murray, 510 V. Noaks, 203 V. Payne, 378 T. Steiner, 140 V. The People, 192 V. Thompson, 72 Wiener v. 210 Davison, Allen v. 141 Dawes, Hodges v. 403 V. Cope, 119 V. Howard, 357 V. Shed, 139 Dawney, Morris v. 125 Dawson v. Bank, 193 V. Coles, 57 V. Follen, 316 XXVI INDEX TO AMERICAN CASES CITED, Day, Hartshorn v. 198 Kerr v. 55 Smith V. 191 V. Hale, IfiO V. Perkins, 66 V. Seal, 204 Dayton, Meail v. 242 V. Trull. 204 De Barante v. Gott, 373 De Camp, Holmes v. 203 De Cook, A.lams v. 432 De Grann, Bank v. 203 De Greet, Lanpdon v. 318 Marshall v. 383 De Hart v. Covenhoven, 263 De Laistre, De Soby v. 162 De Peyster, Bolton v. 347 De Kossett, Crutwell v. 408 De Soby v. De Laistre, 162 De Soer, Anderson v. 65 De Turk, Giaeff v. 347 De Witt, Westerlo v. 423 De Wolf V. Johnston, 160 De Wolf, Low V. 119 De Zeng v. Bailey, 393 D'Baun, Beebe v. 53 D'Hauteville Case, 490 D'Oench, State v. 106 D'Wolf V. Harris, 52 Deal V. Bogue, 398 Dean, Butts v. 203 Hampton v. 208 V. Mason, 507 V. AVilliams, 207 Dearing v. Lightfoot, 505 V. Moffit, 139 Deaver v. Rice, 72 Deavor, Watts v. 196 Deberry v. Adams, 195 Debow V. Colfax, 72 Decan v. Shipper, 119 Decrew v. Monis, 125 Dedham v. Nantick, 491 Deering, Shelton v. 154 Defreeze v. Trumper, 510 Degraffenreid v. Scruggs, 66 Dehart v. Wilson 501 Deichman's Appeal, 180 Deifendorf, Elwood v. 190 Delafield, State v. 500 Delano, Cox v. 404 V. Scott, 316 Delie, Lewin v. 501 Delmonico v. Guillaume, 384 Deloaeh, Brown v. 357 Delonoy v. Hutcheson, 384 Demi v. Bossier, 72 Deming v. Foster, 508 V. Williams, 376 Demoss, Robertson v. 180 Denie, Chambers v. 173 Denig, Roemer v. 172 Denni, McAllister v. 393 Denis v. Alexander, 94 V. Leclere, 330 V. Reder, 192 Denison, Bigelow v. 504 V. Tyson, 503 Denman, Freeborn v. 262 Dennie, iNavlor v. 98 V. ilart, 204 Denning v. Smith, 501 Dennis v. Cummins, 133 Denny, Nichols v. 354 V. Association, 304 V. Cabot, 404 V. Lincoln, 162 V. Lyon, 191 Dent, Brooks v. 374 Edelen v. 448 Montague v. 67 Dentlee, Spruneberger v. 202 Denton v. Duplessis, 5(), 4U7 V. Erwin, 162 V. Livingston, 200 V. Wilcox, 162 Deny v. Palmer, 153 Depeyster, Wheelwright v. 498 Depuy V. Stewart, 139 Derman, Hart v. 207 Dermott, Moncure v. 159 V. Wallack, 134 Desauque, Davis v. 202 Desban, Hallett v. 405 Descadilla v. Harris, 203 Desha v. Holland, 395 Deshen v. Bigelow, 94 Desnoyer, City v. 394 Despatch v. Bellamy, 66 Despatch Packets v. Manuf. Co., 504 Deterich v. Lenan, 201 Detroit, Griggs v. 371 Devane v. Fennell, fi4 V. Larkins, 353 Deveau v. Fowler, 397 Devereaux, Chapman v. 404 Devan, Carpenter v. 191 Dewart, Borrell v. 72 Dewees, Rothwell v. 408 Dewes v. Miller, 166 Dewitt V. Osborne, 182 Dey V. Williams, 448 Deyell v. Odell, 194 Deyer, Jones v. 421 Dialogue, Pennock v. 316 Dick V. Lindsay, 87 Dickenson v. Lee, 348 V. Parvis, 341 Dickerson, Neilson v. 507 V. Gordy, 162 V. Seelye, 120 Dickey, Kelso v. 354 Stultz V. 72 V. Sleeper, 262 Dicking, Haralson v. 162 Dickinson College v. Church, 206 V. King, 204 V. Smith, 182 Dickson v. Forsyth, 86 Didier, Carrington v. 200 Dieterick, Andrew v. 94 Diffenderffer v. Winder, 370 Diffendorfer v. Jones, 72 Dillahunty, Brown v. 240 Ricks v. 506 Dillard v. Moore, 508 I 4 INDEX TO AMERICAN CASES CITED. XXVll Dilleye, Van Epps v. 202 Dillingham, Montgomery v. 194 V. Jenkins, 333 Dillon V. Wright, 53 Dinehart, Nettleton v. 128 Dingley, Seaver v. 53 Dinkle, Candler v. 354 Dinsmore, Thatcher v. 203 V. Bradley, 241 Directors v. Anderson, 122 Dishmain, 8ale v. 383, 407 Divine v. Mitchum, 384 Dix V. Cobb, 55, 56 Dixon, Bank v. 193 V. Ewing, 191 V. Moyer, 318 V. Myers, 93 V. Thatcher, 126 Doak V. Swann, 403, 407 Dob V. Halsey, 403 Dobbin, Hardy v. 200 V. Bradley, 192 Dobbs V. Gullidge, 127 Dobney, Thornton v. 193 Dodd, Allen v. 162 Dodridge, Hewes v. 502 Dodge, Boston v. 138 Gregory v. 404 Griggs V. 334 Outwater v. 93 V. Adams, 138 V. Waterbury, 262 Dodworth v. Jones, 52 Doe V. Postmaster, 193 Dogan V. Ashbey, 204 Doggett, Halliday v. 380 Dohrmann, Sutcliffe v. 399 Dolan, Lancaster v. 486 V Dole V. Lincoln, 421 Doll V. Bull, 160 Dominick v. Moore, 354 V. S.ayre, 346 Donaldson, Appleton v. 153 Yates V. 153 V. Bank, 384 V. Chambers, 242 V. Kendall, 408 V. Winter, 433 Williams v. 486 Donath v. Broomhead, 98 Doner v. Stauffer, 397 Doniphan, Rice v. 408 Donk, Anderson v. 200 Donnally, Edgar v. 384 Donnelly, Stewart v. 502 Donner's Appeal, 354 Donoghue, Trask v. 433 Doolin V. Ward, 162 Doolittle, Blink v. 392 Cornett v. 200 Robinson v. 206 Dord, Bevine v. 509 Dorman v. Bigelow, 143 Dormick v. Reichenback, 433 Dorr, Briggs v. 518 Dorrance v. Scott, 486 Vanhorne v. 155 Dorrington, Dandridge v. 471 Dorsett, Moter v. 161 Dorsey, Dyer v. 133 V. Creditors, 152 V. Gasaway, 206 V. Jackman, 510 Dorwin, Austin v. 202 Dott V. Cunnington, 335 Doty V. Gerham, 70 V. Mitchell, 486 V. Wilson, 138 Dougal V. Cowles, 203 Dougherty, Soule v. 503 Stewart v. 507 Thompson v. 374 White V. 397. V. Stephenson, 440 Doughty, Cutter v. 348 Stewart v. 72 Stillwell V. 338 V. Owen, 162 Douglass, Cruger v. 485 Hanner v. 191 Leland v. 504 Nichols V. 192 V. Morford, 125 V. Satterlee, 441 V. Winslow, 398 Dow, Greely v. 192 V. Sayward, 398 Whipple V. 359 Downey, Smith v. 421 V. Hicks, 204 V. Hotchkiss, 143 Dows V. Cobb, 120 V. Greene, 100, 119 V. Rush, 119 Doyle V. Commissioners, 167 Dozier, Gregory v. 56 Draher, Martin v. 205 Drake, Ross v. 362 Stowell V. 381 Taylor v. 144 V. Newton, 144 V. Pell, 362 Draper v. Bissel, 408 V. Romeyn, 194 Draugher, Emanuel v. 404 Drayton v. Drayton, 353 Drennen v. House, 406 Dresser v. Ainsworth, 510 V. Dresser, 422 Drew, Nash v. 503 Driesbach, App v. 58 Drinker, Ross v. 404 Drinkhard, Ingram v. 179 Driukwater v. Jordan, 393 Webster v. 138 Dripps, Christian v. 66 Drum, Nesmuth v. 139 Drury v. Grace, 334, 471 Dublin V. Chadbourne, 432 Dubois's Appeal, 408 Duburjue, Gelpcke v. 56, 159, 498 Duck, Poe V. 242 Dudgeon, Bray v. 373 Dudley, Marshall v. 178 V. Littlefield, 386 Duffee V. Mason, 507 XXVlll INDEX TO AMERICAN CASES CITED. Duffy V. Duffy 411 V. Insurance Company, 375 V. Shockey, 133, 1(54 Dulaney, Kinniken v. 57 Dumont, Herbert v. 193 Kellogg V. 202 Duncan, Comfort v. 72 Dahlgreen v. 401 Eldridge v. 163 United States v. 180 V. Hoges, 157 V. Reid, 192 V. Spear, 78 DuncanBon v. McClure, 162 Dundas, Hoopes v. 471 V. Sterling, 192 Dunham, Smith v. 156 V. Clayton, 404 V. Rogers, 405 Dunklin v. Wilkins, 56 Dunlap V. Berry, 94 Dunlop, Hoffman v. 392 V. Gregory, 134 Dunn, Archer v. 380 • Bank v. 501 V. Clements, 156 V. Snell, 55, 57, 519 V. Thorp, 373 Duplesis, Denton v. 56, 497 Dupree, Cloud v. 373 Durant, Andrews v. 86 Durden, Kirkbride v. 173 V. Burns, 335 Dure! v. Wendell, 394 Durkee, Kelsey v. 66 Durvin, Barger v. 196 Duryee, Burr v. 317 Dustin V. Newcomer, 123 Duval, Cadbury v. 365 Croughton v. 193 V. Bank, 371 Dwelly, Martin v. 486 Dwight, Gilman v. 164 Dyckman v. Kernochan, 371 Dyer, Blanchard v. 380 Tyler v. 262 V. Clark, 384 V. Cornell, 362 V. Dorsey, ]33 V. Lewis, 507 Dyott, Coal Company v, 486 Dykes, Pilgrim v. 193 E. Eagan v. Call, 507 Eager, Stanton v. 98 Eagle V. Eichelberger, 94 Eakin v. Harrison, 339 Eames, Godfrey v. 318 Earle, Company v. 315 Early, Postmaster v. 160 V. Mahon, 140, 159 Earnest v. Parke, 139 Earp's Ap., 338 Easter v. White, 144 Eastman v. Wright, 55, 56, 519 Walker v. 139 Eastwick, Farnum y. 196 Eaton, Evans v. 316 Sewell V. 94 AVorcester t. 162 V. Eaton, 262 V. Lincoln, 202 V. Whitaker, 143 V. Worthington, 498 Eberman v. Reitzel, 162 Eby, Schumacher v. 100 Eckart, Burkle v. 404 Zeigler v. 418 Eckert, Streeper v. 378 V. Eckert, 144 V. Mace, 144 Edey, Smalley v. 204 Eddy, Hall v. 354 Edelen v. Dent, 448 Eden, Stuart v. 138 Warden v. 518 Edes V. Goodridge, 207 Edgar v. Donnally, 384 Wood V. 200 Edgell V. Stanford, 161 Edgerly, Brewster v. 134 V. Emerson, 191 Edick V. Crim, 510 Edmonds v. Crenshaw, 441 Waring v. 423 Edney v. Bryson, 426 Edsell, Paine v. 155 Edwards, Bank v. 192 Brice v. 193 Hart v. 508 Jackson, v. 485 McCraw v. 421 Morange v. 57 Norfleet v. 157 Ramsey v. 262 V. Pitzer, 408 Edward's Ap., 363 Effinger v. Henderson, 207 Egberts v. Wood, 383, 400 Egell V. Franklin, 503 Ehle V. Judson, 138 Ehringhaus, Williams v. 380 Eichelberger, Eagle v. 94 Jenkins v. 87 Eisenhart v. Slaymaker, 380 Eislord, Sconton v. 139 Elam, Morgan v. 486 Elder, Parker v. 380 Samraerell v. 119 Elderkin, Wells v. 262 Eldred v. Hazlett, 55 Eldredge, Jenkins v. 371 Eldridge v. Duncan, 153 V. Eldridge, 353 Elfe V. Gadsden, 144 Elkins V. Parkhurst, 162 Ellerbee v. Ellerbee, 357 Ellicot, Grant v. 153 Ellig V. Naglee, 370 Elliot, Bagwell v. 433 Boyers v. 384 Bromley v. 404 Coffin v. 341 George v. 339 INDEX TO AMERICAN CASES CITED. XXIX Elliot, Miller v. 133 State V. 66 V. Holbrook, 392 V. Sleeper, 203 V. Smith, 353 Ellis, Christian v. 397 Forsythe v. 610 Patterson v. 334, 354 Pursel y. 189 Stover V. 155 V. Barker, 486 V. Beale, 167 V. Ellis, 346 V. Robinson, 160 Wagner v. 488 Ellison V. Jackson, 138 Elton, Nicholson v. 125 Elwood V. Deifendorf, 190 Elworth V. Mitchell, 160 Ely, Smith V. 310 V. Hair, 408 V. Karmany, 172 Emanuel, Cullum v. 190 V. Bird, 383, 397 V. Draugher, 404 Emerson, Bank v. 66 Edgerly v. 191 V. Brigham, 509 V. Davis, 330, 371 V. Manufacturing Company, 503 Emery, Cutler v. 196 Haven v. 94 V. Neighbour, 485 V. Tichout, 206 Emlen, McCarty v. 397 Emmet, Whitney v. 312, 316 Emery v. Greenough, 160, 241 V. The Judge, 347 Ender v. Scott, 507 Enders v. Brune, 190 V. Enders, 446 Endress, Shunk v. 375 Enew v. Clark, 173 Engler, Walker v. 134 English, Ridgway v. 138 V. Foote, 66 Ennis, Bank v. 374 Ensign v. Kellog, 55 V. Woods, 384 Ensworth, Cuyler v. 190 Eppes, Royall v. 335 V. Randolph, 190 Erb's Appeal, 190 Erie v. Tracy, 262 Erickson v. Willard, 345 Ericson, Hulburt v. 353 Erwin, Denton v. 162 Starnes v. 506 V. Maxwell, 507 V. Saunders, 139 Erwin's Ap., 385 Eschbach, Baltimore v. 502 Estell V. Goodloe, 200 Estill, Miller v. 399 Etheridge v. Bell, 354 Etiner v. Shope, 263 Eustace, Hatch v. 125 Evans, Danforth v. 106 Evans, McGuire v. 445 Morris v. 191 Reed v. 144 Rowland v. 433 Sisk V. 166 Tate V. 503 T. Begley, 172 V. Chambers, 317 V. Eaton, 316 V. Inglehart, 73 V. Jones, 63 V. Jordan, 318 V. Kingsberry, 362 V. Nagley, 161 V. Norris. 153 V. Potter^ 502 V. Secrest, 475 Eve, Hannay v. 161 V. Moseley, 202 Everett, Hasking v. 398 Saltus V. 498 Taul y. 133 v.. Chapman, 395 V. Coe, 403 Everitt, Van Doren v. 72 y. Knapp, 172 V. Lane, 426, 445 Everly v. Rice, 191 Ewe, Stevens v. 93 Ewer V. Coxe, 319 Ewing, Ashford v. 58 Call V. 441 Dixon V. 191 V. Smith, 486 V. Standifer, 335 V. Tees, 144 Ex parte Crouse, 491 Decker, 157 Foster, 82 Hewitt, 490 Kerwin, 157 Quiney, 67 Schumpert, 489 Vasques, 262 Wells, 376 Zeigenfuss, 240 Exter V. Odwine, 346 Eyre v. Golding, 276 Eyth, Walker v. 211, 400 Ezzell, Monroe v. 395 F. Fadden v. Turner, 105 Fagan, Smith v. 390 Fairbanks v. Bloomfield, 105 Fairchild v. Camac, 1 72 v. Holly, 206 Fairly v. Kline, 362 Falconer v. Montgomery, 262 Falea, Baker v. 52 Musson V. 159 V. Mayberry, 162 Fanshor v. Stout, 102 Fant V. Wilson, 100 Fauty V. Kline, 353 XXX INDEX TO AMERICAN CASES CITED. Faris, Triprg v. 510 Farlee v. Farlee, 155 Farley, Jones v. 502 V. Ilustenbaden, 140 Farman, Wallace v. 205 Farmar, MeFarland v. 94 8liivey v. 125 Farnam, Bean v. 263 Farnham, Anderson v. 262 V. O'Brien. 138 Farnworth, Peters v. 503 Farnum, Conistock v. 518 V. Eastwick, 196 Farns worth v. Sharp, 156 Farquhar, Bosley v. 504 Manufacturing Company v. 507 Farr v. Gist, 508 Farrar, Hanley v. 139 V. Stackpole, 66 V. United States, 160 Farwell, Inbusch v. 408 V. Jacobs, 58 Faull V. Tinsman, 55 Faunce v. Burke, 133 Faust, Hall v. 487 Fawcetts v. Kiinmey, 191 Fay V. Bradley, 207 V. Smith, 155 Fearson, Nicholson v. 159 Fee, Commonwealth v. 491 Feeny v. Daly, 139 Fegely, Heckert v. 405 Felch, Matthews v. 406 Felder, Nelson v. 179 Fellowes v. Prentiss, 192 Fellows, Pinney v. 374 Shirley v. 153 Feltz, Simpson v. 403 Fencher, Morgan v. 610 Fenlon, Navigation Company v. 263 Fennell, Devane v. 94 Fenner, Turner v. 143 Fenwick, Berksdale v. 189 V. Phillips, 202 Ferguson, Blakeney v. 143 Finney v. 173 Laughlin v. 189 V. Staver, 181 V. Sweeney, 126 V. Thomas. 106 V. Turner, 192 Wilson V. 511 Worthington v. 190 Ferrall v. Bradford, 204 Ferree, Gardner v. 193 Ferrell, Ledford v. 144 Ferrett, Attvill v. 330 Ferris, Bank v. 200 V. Mann, 262 Ferson v. Monroe, 397 Fessenden, Wildes v. 202 V. Willey, 242 Field, Lehigh Co. v. 87, 94 V. Holland, 205 V. Howell, 333 V. Runk, 144 Filley v. Phelps, 397 Fillmore, Russell v. 55 Filson V. Ilimes, 159 Finch, Huntington v. 155 V. Rogers, 284, 426 Findley, Ilea ton v. 66 V. Bank, 195 Woodley v. 335 Finley, Buckner v. 241 Gardner v. 70 Finn, Busby v. 160 V. Barclay, 166 Finney v. Ferguson, 173 Firt, House v. 507 Fish V. Roseberry, 509 V. Tank, 509 Fishburne V. Saunders, 178 Fisher, Canal Co. v. 56 Hemmenway v. 179 Hurlt V. 362 Kauffman v. 394, 408 Peck V. 385 Scott V. 206 Scribner v. 242 Stevens v. 160 V. Campbell, 501 V. Hyde, 242 V. Pollard. 511 V. Stayton, 242 V. Wheeler, 241 V. Whoolery, 52 Fisk, Fox V. 501 V. Fowler. 134 V. Herrick, 398 Fiske V. Foster, 242 Fister V. Beale, 125 Fitch V. Forman, 381 V. Hail, 404 V. Harrington, 404 V. Peckham, 448 V. Waite, 200 Fitzgerald, Hart v. 380 V. Caldwell, 178 Fitzhugh, Bronson v. 392 Wiman v. 121 Fitzpatrick, Kinley v. 507 V. Fitzpatrick, 156 Fitzsimons v. Baum, 161 Flanagan v. Insurance Co., 56 V. Wetherill, 178 Flecknor v. Bank, 160 Fleeman v. McKean, 94 Fleet, Saxton v. 57 Fleming, Stiles v. 376 V. Slocum, 508 V. Townsend, 378 Fletcher, Bank v. 190, 203 Foster v. 373 Nave V. 202 Wat.son V. 167 V. Cavelier, 155 V. Coleman, 486 V. Gamble, 192 V. Pratt, 56 Flickinger, Okinson v. 263 Flint, Hewlet v. 86 V. Pattee, 424 Floyd, Hollinsworth v. 191 Strange v. 380 Floyds V. Goodwin, 191 INDEX TO AxMERICAN CASES CITED. XXXI Fluck V. Bond, 408 Flynn, Gothard v. 144 Foard v. Womack, 163 Foggart V. Blackweller, 507 Foley V. McKeegan, 132 Folger, Stilley v. 374 Follain v. Orillian, 207 Follen, Dawson v. 316 Follett, Martindale v. 156 V. Smith, 203 Folsoni V. Marsh, 330 Folwell, Thomas v. 486 Fonda, Van Bracklin v. 509 Fones v. Rice, 374 Foot, Hawley v. 203 Foote, English v. 66 Silsbee v. 312, 318 Ford, Ljgon v. 263 Saving Bank v. 304 V. Ford, 154, 445 V. Keen, 262 V. Keith, 189 V. Stuart, 57 Fordyce, Baker v. 192 Forgue, Abel v. 392 Forman, Fitch v. 381 Forney v. Benedict, 140 Forrest v. Robinson, 487| Woolwich V. 160 Forsyth, Dickson v. 86 Hopkins v. 380 V. Matthews, 378 V. Rathbone, 362 Forsythe v. Ellis, 510 V. Price, 72 Fort, Brown v. 152 Fortier, McFadden v. 207 Foster, Anderson v. 160 Calef V. 503 Company v. 486 Deming v. 508 Fiske V. 242 Hoffman v. 498 Valentine v. 140 Wetherbee v. 67 V. Trustees, 190 V. Alston, 491 V. Caldwell, 507 V. Fletcher, 73 V. Hooper, 390 V. Sinkler, 518 V. Walker, 194 Fouke V. Bowie, 206 Fourniquet, Perkins v. lf9 Fowle, Pierpont v. 322 Fowler, Fisk v. 134 Fuller V. 510 Deveau v. 397 Griffith V.495 King V. 72 V. Brooks, 192 V. Bush, 204 V. Throckmorton, 162 Fox, Furness v. 354 Judd V. 52 V. Fisk, 500 V. Mensch, 162 Foxcroft, Clark v. 189 Foxon, Marvin v. 143 Fraley v. Bispham, 509 Frances, Tobias v. 67 Franklin, Egell v. 503 V. Vanderpool, 204 Washburn v. 280 Wilt V. 62 Eraser v. Tenants, 504 Frasier, Poure v. 504 Frazier, Arnold v. 200 V. Brownlow, 487 T. Frazier, 172, 347 V. Billiard 94, 98 V. Hyland, 207 V. Thompson, 159 Frear v. Hardenburgh, 138 Frederick, Rhoads v. 192 Freeborn v. Denman, 262 Freeman, Hargrove v. 141 Newlin v. 485 v. Brittin, 161 V. Cook, 370 V. Hill, 373 V. Newton, 55 V. Tompkins, 72 Voorhis V. 66, 70 Fremont V. Crippen, 123 Freese, Whitman v. 507 Freesler, Richards v. 161 French, Bank v. 193 Bowes V. 262 Crane v. 408 Pigou V. 189 V. Bank, 153 V. Lovejoy, 397 V. Merril, 125 V. Price, 204 Woodruff V. 200 Freshwater v. Nichols, 52 Frets v. Frets, 262 Frey, Sweigart v. 335 V. Kirk, 242 Fries v. Boiseiet, 140 V. Watson, 178 Frink v. Green, 392 Friott, Treasurer v. 390 Frisbie v. Larned, 202 Frost, Chelsey v. 155 V. M'illard, 105 V. Wood, 504 Fronty v. Fronty, 347, 426 Fry V. Miller, 106 Frye, Adams v. 155 Whitmer v. 155 Fulford V. Johnston, 202 Fullam V. Stearns, 66 Fullenwidder, Simpson v. 161 Fuller, Holland v. 383 Peirce v. 133, 164 Quinn v. 153 Trull V. 66 V. Bryan, 200 V. Fowler, 510 V. Heath, 66 V. Paige, 105 Fullerton's Appeal, 172 Fulton V. Fulton, 354 V. Matthews, 193 XXXll INDEX TO AMERICAN CASES CITED. Furber, Postmaster v. 206 Furiuan v. Miller, SOS Furness v. Fox, 354 Furniss, Buckley v. 98 G. Gadsden, Elfe v. 144 V. Lord, 191 Gaffield V. Iliipgood, 67 Gage, Hotchkiss v. 507 V. Rogers, 72 Gaillard, State v. 508 Gaines v. Catron, 384 V. McKinley, 503 V. Poor, 376 Gainey v. Sexton, 180 Galbraith v. Galbraith, 144 V. Gedge, 384 Gale V. Ward, 66 Gallagher v. Roberts, 203 V. Waring, 509 Gallaud, Taylor v. 392 Gallego V. Gallego, 448 Gallis V. Kirby, 200 Galloway v. Hughes, 407 Gaily, Matthey v. 394 Galway v. Webb, 263 Gamble, Fletcher v. 192 Gamblin v. Walker, 57 Gamewell, Hommell v. 189 Gammon v. Howe, 133 Garden, Hartzfield v. 162 Gardener, Cartwright v. 134 Gardiner v. Gumming, 383 V. Gardiner, 485 V. Gault, 433 V. Gorham, 203 V. Hust, 203 V. Printup, 445 V. Smith, 397 Gardner, Smith v. 242 V. Adams, 54 V. Campbell, 52 V. Ferree, 193 V. Finley, 70 V. Marcy, 159 V. The Ship New Jersey, 82 V. Towsey, 138 Garen, Roberts v. 138 Garland v. Lockett, 138 Garner, Caldwell v. 93 Maise v. 155 Garnie, Robert v. 206 Garrett v. Macon, 365 V. Stuart, 138 Garrington, Palmer v. 502 Garvin, Cunningham v. 138 Gary, Wellington v. 192 Gasquet, Byrd v. 179 Gass V. Stinson, 193, 206 Gassaway, Horsey v. 206 Gasset, Lelane v. 67 Gaston v. Barney, 208 Gates, Burgess v. 127 V. Gates, 52 Gatewood, Towell v. 506 V. Palmer, 178 Gault, Gardiner v. 433 Venning v. 508 Gaunt V. Tucker, 422 Gay, Adams v. 160 V. Bidwell, 105 V. Gay, 285, 426 V. Lemele, 180 Gay's Case, 50 Gayle v. Martin, 381 Gaylerv. Wilder, 314, 316 Gaylord, Stanley v. 127 Gedge, Galbraith v. 384 Gee, Blunt v. 471 V. Overby, 394 Geeseamen, Hower v. 210 Geigor, Harnsberger v. 192 Gellett V. Sweat, 155 Gelpcke v. Hubuque, 56, 159, 498 Gelston, Sands v. 139 Gentry, Hocker v. 354, 362 George v. Elliott, 339 Gerham, Huty v. 70 Gerker, Horstman v. 55 Gerlach, Coates v. 374 German v. German, 335 Gerrish, Buffington v. 62 V. Ayres, 262 Gethen, Mcllvaine v. 470 Gettings, Pennington v. 421 Getty V. Shearer, 155 Williams v. 501 Gheen, Worrall v. 157 Gibbs, Bradish v. 485 Musgrove v. 161, 202 The People v. 126 V. Bourland, 200 V. Bryant, 189 V. Linsley, 501 V. Marsh, 345 V. The Texas, 258 Giberton, Alcock v. 164 Gibson, Alexander v. 240 Bank v. 190 Smith V. 503 V. Broadfoot, 262 V. Colt, 503 T. Cook, 314 V. Stearns, 161 V. Stevens, 398 V. Walker, 486 Giddings v. Seward^ 446 Gifford, Murdock v. 66 V. Allen, 192 V. Thorn, 354 Gilbert, Arnold v. 471 Ball v. 159 V. Anthony, 157 V. Chapin, 345 V. Henck, 189 V. Sutliff, 370 Gilbreath v. Alban, 445 Gilbreth, Vining v. 93 Gilchrist v. Marrow, 507 V. Moore, 54 Gilder, Catlin v. 407 Gilead v. Smith, 203 INDEX TO AMERICAN CASES CITED. XXXIU Giles, Nottingham V. 159 Gilett V. Balconi, 72 Gilkyson v. Larne, 140 Gill, Aubic V. 178 Glenn v. 2-H', 399 Glum V. 397 V. Kuhn, 406 V. Read, 357 V. Rice, 207 Gilleland, Miller v. 155 Gillespie, Parraentier v. 172 V. Cammack, 153 V. Creswell, 189 V. Wood, 122 Gillett, Sprague v. 504 . V. Camp, 357 Gilman, Amory r. 167 Cutting V. 421 V. Dwight, 164 V. Hill, 93 Gilmer v. Blackwell, 182 Gilmore, Gorgius v. 105 Huntington v. 421 Wilbur V. 127 V. Bussy, 204 V. Land Company, 399 Gilpatrick v. Hunter, 393 Gilpin V. Temple, 406 Girard, Sylvester v. 78 Gist, Farr v. 508 Rice V. 167 Given, Burdick v. 204 Givens v. Briscoe, 191 V. Rodgers, 166 Gladding, Stevens v. 331 Glancy, Johnston v. 143 Glass, Cheek v. 193 V. Beach, 139 v. Reed, 510 Glasgow, Musgrave v. 193 Glassell, Pollock v. 485 Glenn, Harrington v. 178 Powell V. 335 V. Gill, 241, 399 V. Humphreys, 240 V. Smith, 202 Glesson v. Carter, 126 Glover, Chandler v. 140 Hendrick v. 56 Wilson V. 193 V. Austin, 380 Glum V. Gill, 397 Goad V. Hurts, 501 Goddard v. Chase, 70 V. Johnson, 354 Godfrey, Greene v. 159 Smith v. 160 Thorndike v. 501 V. Eames, 318 Godfroid, Lemonier v. 353 GofF, Reeves v. 263 Golden, Bruminett v. 125 V. Price, 240 Golder v Ogden, 94 Golding, Eyre v. 276 Goldsmith, Berthold v. 404 Webb V. 202 Golt, Kane v. 302 Golt v. Cook, 362 Gooch V. Bryant, 156 Good, Martin v. 156 Goodale, Stowell v. 105 V. Holdridge, 162 V. Wheeler, 504 Goodloe, Claribon v. 390 Estele V. 200 Tudor V. 192 V. Clay, 191 Goodman v. Griffin, 193 Goodnow V. Smith, 394 Goodrich, Tom v. 189 V. Church, 200 v. Jones, 71 V. Proctor, 365 Goodridge, Edes v. 207 V. Rodgers, 127 Goodwin, Eloyds v. 191 Lamb v. 202 Miller v. 374 Palmer v. 241 Ryan V. 316 V. Richardson, 398 Goodyear v. Matthews, 317 V. Watson, 190 Googins V. Gilmore, 105 Gookin r. Graham, 510 Gordon, Merrick v. 405 V. Buchanan, 501 V. Price, 202 Gordy, Dickerson v. 162 Gore, Bank v. 407 Boardman v. 407 Goret, Boardman v. 157 Gorham, Gardiner v. 203 Lynden v. 398 Samuels v. 93 Gorkin, Shaw v. 204 Gorman, Bank v. 210 Gossen v. Brown, 190 Gothard v. Flynn, 144 Gott, De Barante v. 373 Rush V. 167 Gougler, Marshall v. 156 Gould, Andover v. 138 Bachus V. 330 Carnochan v. 509 Cornwall v. 205 Jackson v. 157 Jacques v. 255 Lee V. 53 Little V. 331 Washburne v. 316 V. Gould, 55, 189, 393 Gourdin v. Commander, 157 Govan, Bank v. 194 V. Binford, 193 Gower v. Carter, 133 V. Saltmarsh, 133 Grace, Drury v. 334, 471 Grady, Browning v. 394 V. Robinson, 406 Graeff v. De Turk. 347 Graff V. Caldwell, 119 Grafton, Andover v. 504 Gragg v. Brown, 84 Graham, Gookin v. 510 XXXIV INDEX TO AMERICAN CASES CITED. Graham Lester v. 508 Ste])hens v. 155 V. Bickhara, 133 V. Graham, 262 V. Ilainilton, 262 T. Holt, 157 V. Hunt, n9 V. Newton, 178 T. State, 182 V. Vinning, 12T Gram v. v'>tebbins, 279 Grandin v. Le Roy, 15S Grant, Boyd v. 196 Police V. 122 V. EUieot, 153 V. Hook, 365 T. Ludlow, 55 T. McLester, 162 V. Raymond, 317 Grasselli v. Lowden, 133, 164 Grattan v. Appleton, 421 Gratz, Jennings v. 509 Prevost V. 155 Graves, Barnard v. 204 Davidson r. 374 Pahlman v. 401 Simpson v. 374 Timberlake v. 334 Van Vechten v. 518- V. Graves, 175 T. Webh, 190 V. Worrall, 1S2 Gray, Armstrong v. 153. Bank V. 404 Call V. 105 Chapman v. 485 Darlington v. 203. Higginson v. 160' Hook v. 159 Limehouse v. 508 Parrish v. 193 Wiley v. 374 T. Brown, 392 T. Crosby, 134 v. Hawkins, 44ft V. Holdship, 67 T. James, 317 V. Lawridge, 13^ T. Monroe, 240 T. Palmer, 385 T. Russell, 330 T. Wilson, 262, 381 Graysons v. Richards, 15T Greely v. Dow, 192 T. Smith, 258 v. Willcocks, 56 Green, Boswell v. 94 Bowditeh v. 190 Boylston V. 519 Crabtree v. 262 Frink v. 392 Haight V. 127 McLain v. 508 Perry v. 153 Robinson v. 406 Swett V. 519 United States v. 48& Wade V. 191 Green, Williams v. 134 V. Beals, 408 V. Cutwright, 72, 73 V. Collins, 348 V. Kemp, 190 V. Osborn, 339 V. Sarmiento, 204 V. Wood, 123 Greenawalt v. Kreider, 193 Greene, Dows v. 100, 119 v. Godfrey, 159 V. Mumford, 370 Greenhagen, Colter v. 138 Greenleaf, Hilliard v. 243 Odlin V. 189 V. Burbank, 144 Greenough, Emory v. 160, 241 V. Wiggington, 487 Greenongh's Appeal, 180 Greer, Chester v. 426 Warden v. 120 Greeves v. McAllister, 138 Greenway, Bradford v. 487 Greenwood, Hotchkiss v. 318 Womack v. 354 V. Colcock, 162 . V. Curtis, 160 Gregg, Lamme v. 507 V. Bethea, 354 V. Sanford, 106 Gregory, Baker v. 140 Dunlop V. 134 Robinson v. 408 V. Bewley, 161 V. Dodge, 404 V. Dozier, 56 V. Thomas, 203 Grider v. Payne, 190 Grier v. Hood, 408 Griffin, Goodman v. 193 Griffith V. BufFum, 395, 404 V. Cox, 155 V. Fowler, 498 V. Griffith, 375 V. Grogan, 394 V. Ingledew, 80, 119 Griffiths, Laflin v. 66 Griggs V. Detroit, 371 V. Dodge, 334 Grimke v. Grimke, 347, 487 Griswold, Kellogg v. 404 V. Brown, 127 V. Piatt, 240 V. Waddington, 162 Groff V. Levan, 72 Grogan, Griffith v. 394 Groom, Vincent v. 162 Grosholz, Warnick v. 144 Gross, Bank v. 155 Grosvenor v. Austin, 397 V. Bank, 200 Grout, Parker v. 65, 56 Grove, Smith v. 125 V. Brien, 191 V. McCalla, 140 Grover, Barney v. 190 V. Grover, 422 V. Hoppock, 194 INDEX TO AMERICAN CASES CITED. XXXA' Groves, Boarman v. 487 Grow, Lord v. 509 Grubb, Belcher v. 200 V. Brooke, 178 Grundy, Roland v. 498 Gruse v. Bryant, 126 Guery v. Vernon, 335 ^ Guice, Lea v. 395 Guild, Cavender v. 179 Hubbard v. 384 Sawin v. 318 Wheeler v. 497 Guilford v. Smith, 99 Guillaume, Dehnonieo r. 384 Guillou, Humphreys v. 155 Guion V. Guion, 357 Gulick V. Ward, 162 GuUidge, Dobbs v. 127 Gullifer, Crocker v. 78 Gums V. Capehart, 285, 426 Gundacker, Slaymaker v. 205 Gunn, Skinner v. 503 V. Tunnehell, 191 Westcottv. 105 Gurley v. Hillstine, 202 Gurney, United States v. 133 Guthart, Kline v. 125 Guthrie v. Wickliffe, 207 Workman v. 504 Guy V. Mcllree, 211 V. Tams, 139 Gwinn v. Whitaker, 178, 207 H. Haas, Commonwealth v. 191 Habersham v. Roderigues, 510 Hacker v. Perkins, 205 Hackett, Lawless v. 172 Mercer Co. v. 56 County V. 498 V. Manlove, 105 Hackley, Cummings v. 204 James v. 202 V. Patrick, 390 Hadden, McCandiess v. 383 Haddens v. Chambers, 190 Hadley, Perkins v. 390 Torry v. 204 Haddock, Clement v. 404 Haggart v. Morgan, 263 Haggins v. Peck, 390 Hagner, Towers v. 485 Haight, Ballentine v. 240 V. Green, 127 Hail, Fitch v. 404 Hair, Ely v. 408 Haile, Mason v. 240 llaldeman, Bank v. 162 Vaugh V. 67 Hale, Baldwin v. 241 Day V. 160 Iron Company v. 503 Pitts V. 125 V. Henderson, 162 V. Henrie, 385 V. Huntley, 90, 93 V. Ross, 242 Hale V. Russ, 155 Haley, Baker v. 160 Hall, Bank v. 155 Bangs V. 139 Barrett v. 317 Bisbee v. 50, 333 Cunningham v. 509 Lacy V. 384 Miller v. 242 Norment v. 404 Owings V. 504 Pattison v, 207 Rose V. 202 Street v. 204 Vanderburgh v. 404 V. Carnley, 105 V. Clement, 207 V. Constant, 205 V. Eddy, 364 V. Faust, 487 V. Hall, 179, 276, 284, 400 V. Law, 173 V. Sayre, 180 V. Snowhill, 105 ' V. Thing, 118 V. Wiles, 312 Halleck v. Mixer, 125 V. AValbridge, 125 • Williams v. 371 Williamson v. 189 Hallenbrake, Arnold v. 501 Hallett, Callagan v. 146 Low V. 263 Olden V. 240 V. Desbau, 405 V. Holmes, 192 Halliday v. Doggett, 380 Hallowell v. Phipps, 348 HalloweU's Est., 180 Halls, Barrett v. 507 Halsa V. Halsa, 144 Halsey, Dobb v. 403 Halstead, Watkins v. 138 Hamer v. Kirkwood, 178 Hamilton, Commonwealth v. 492 Graham v. 262 Herchew v. 164 Wilcher v. 178 V. Bishop, 375 V. Benbury, 206 V. Canfield, 159 V. CoUender, 2t)5 V. Overton, 133 V. Summers, 408 Hamlet, Amber v. 94 Hammer v. Bradenbach, 133 V. Rochester, 207 Hammersley v. Lambert, 383 Ilammett, Brewster v. 398 Norris v. 393 v. Anderson, 241 Hammon v. St. John, 383 Hammond Bank v. 167 Roberg v. 336 Steamboat v. 203 V. Hammond, 445 v. Hopping, 161 Hamot, Spires v. 207 XXXVl INDEX TO AMERICAN CASES CITED. Hampton, Bowdre v. o90 ghehiin, v. 193 V. Deiin, 208 V. Levy, 190 V. Matthew?, 603 Ilonchuian, Lewis v. 153 Haiullej', Ilnrrison V. 139 llamly, Sandford v. 500 llaner's Apjieal, 172 ILanford, Brooks v. 54 Ilankinson, Perrine v. 40i Hanks V. McKee, 508 Hanley v. Farnir, 139 Ilnnnay v. Eve, 161 llanner v. Douglass, 191 Ilanness v. Bonnell, 200 Ilannum v. Spear, 365 Hanover v. Turner, 141 Hanrick, Bank v. 193 Hanson, Rohan v. 207 Hapgood, Galfield v. 67 . V. Houghton, 141 Haralson v. Dicking, 102 Harbold v. Kuntz, 140 Harcum v. Hudnall, 362 Hardeuaan, Davenport v. 191 Hardenburg, Freer v. 138 Harding, County v. 127 Hardy v. Dobbin, 200 V. Metzgar, 498 Hare v. Monetrie, 242 Harger, Chambers v. 173 Hargons v. Stone, 509 Hargraves v. Cooke, 206 Hargrove v. Freeman, 141 Harker v. Conrad, 208 Harkins V. Coalter, S75 Harkness v. Sears, 70 Harlan t. Harlan, 52, 66, 126 V. Moriarty, 200 Harmon, Pitzer v. 190 Harmstead, Arrison v. 156 Wallace V. 156 Harnes, Ayers y. 157 Harnesberger v. Geiger, 192 Harper v. Phelps, 346 Walt V. 162 Barring v. Coles, 357 Harrington, Barnard t. 126 Commonwealth v. 162 Fiteh V. 404 Sleighter v. 442 V. Glenn, 178 V. Rich, 442 Harriott, Peek v. 503 Harris, Bentley v. 378 Deseandilla v. 203 < D'Wolf V. 52 Jordan v. 93 Murdoch v. 06, 70 Stephens v. 186 Woodward v. 123 V. Brooks, 194 V. Brown, 374 V. Carson, 72 V. Clark, 421 V. Crenshaw, 127 V. Harris, 487 Harris v. Lindsay, 202 V. Pratt, 99 V. Ross, 162 y. Runnels, 162 V. Sims, 380 V. Smith, 94 V. Wynne, 191 Harrison, Burrows v. 93 Brown v. 161 Eakin v. 339 Horry District v. 157 Rinehart v. 302 V. Close, 392 V. Handley, 139 V. Harrison, 179 y. Lane, 193 y. Tiernans. 158 V. Wilcox, 201 Harrisons v. Harrisons, 346 Harrod, Keener v. 500 V. Lafarge, 152 Ilarsen, Merriam v. 485 Hart, Archer v. 186 Clay V. 362 Dennie v. 204 Linton v. 339 Primrose v. 207 Stout V. 445 Wilmerding v. 84 V. Bailie, 203 V. Boiler, 205 V. Derman, 207 V. Edwards, 508 V. Fitzgerald, 380 V. Rector, 144 V. Wright, 508 Hartman, Morrison v. 194 Hartshorn v. Day, 198 Hartzfield v. Garden, 162 Harwood v. Hildreth, 172 V. Jones, 383 y. Smethurst, 53 Hasbrouck v. Tappen, 134 Haskell V. Raval, 371 Haskin v. AVoodward, 66 Haskins, Seamen v. 203 V. Everett, 398 Hastings, Clendaniel v. 158 Hatch, Bank v. 192 Clark V. 242 Daniels v. 203 Holland v. 157 V. Cobb, 123 V. Eustice, 125 V. Mann, 162 V. Smith, 114 Hatchell v. Odom, 138 Hattier, Trapnell v. 53 HaufiFv. Howard, 384 Haughton, Beers v. 240 V. Bailey, 381 Hauser v. Shore, 364 Haven, Stearns v. 406 V. Emery, 94 Hawes v. Lawrence, 507 Hawk, Braman v. 192 Hawke, Popline v. 432 Hawkens, Blount y. 143 INDEX TO AMERICAN OASES CITED. XXXVll Hawkens v. Appelby, 408 V. Berry, 506 V. Ridenhour, 179 V. Skegg, 72 V. AVelch, 160 Hawkins, Gray v. 440 Hawley v. Foot, 203 V. James, 362 Hawthorn, Patterson v. 354 Hayden v. Marmaduke, 370 Hayes, Beale v. 132 Methuen v. 504 V. Miles, 371 V. Ward, 191 Haylebaker v. Reeves, 140 Haynes v. Cobb, 161 V. Corrington, 193 V. Hunsicker, 93 Haynesworth v. Cox, 347 Hays V. Clurg, 203 V. Commonwealth, 173 V. Jackson, 180 V. Lasater, 380 V. Lynn, 603 V. McClung, 185 T. Mouille, 98 V. Steamboat, 191 V. Stone, 202 Hayward, Armstrong v. 393 Beach v. 395 Haywood, Cruger v. 357 Hazelhursts, Vanuxem v. 242 Hazelstine v. Miller, 503 Hazelton, Irwin v. 179 Hazlett, Eldred v. 55 Hazzard v. Hazzard, 406 Head, Meany v. 52 V. Manners, 138 Headley, Bohn v. 378 V. Kirby, 421 Heard, Carpenter v. 354 V. Bowers, 132 Hearn v. Kiel, 203 . Hearne v. Kevan, 426 Heart v. Johnson, 189 Zent V. 196 Heath, Fuller v. 66 Ilildreth v. 310 Horsey v. 383 V. Page, 101 V. Wells, 516 V. Withington, 485 V. AVright, 330 Heaton v. Findlay, 66 Hebb V. Hebb, 421 Heckert v. Fegely, 405 Heckman v. Messenger, 211 Hecksher, Pottinger v. 99 Hedden, Leaycraj't v. 486 Heffelfinger v. Shutz, 155 HefFerman, Manri v. 189 Rodriguez v. 399, 502 V. Adams, 503 Heffner v. Wenrich, 155 Heibbrenner, Reist v. 125 Ileidenheimer v. Lyon, 202 lleilbron v. Bissel,'208 Ileleman v. Jleleraan, 354 Helme v. Sanders, 125 Helvete v. Rapp, 173 Hemingway, Remheimer v. 52, 399 Hemmenway v. Fisher, 179 Hemphill v. Bank, 501 V. McClimans, 139 Hempstead, Rogers v. 394 V. Reed, 240 Hemstreet v. Howland, 404 Henderson, Effinger v. 207 Hale V. 162 McGlorin v. 134 Montgomery v. 373 Shippy V. 139 Skinner v. 159 The Church v. 162 V. Lauck, 94 V. Moore, 202 V. Talbert, 390 Hendrick v. Glover, 56 Hendrickson's Appeal, 63 Hendricks, Pitts v. 72 Henessy v. Bank, 210 Ilenning v. Workheiser, 155 Henrie, Hale v. 385 Henry, Hill v. 140 McGaughey v. 348 Powell V. 502 Thornton v. 143 V. McCloskey, 362 V. Milham, 518 Henshaw v. Bobbins, 508 Hensley v. Baker, 509 Ilepborn, Cooper v. 354 Heran, Bradstreet v. '119 Herbert v. Dumont, 193 Herdman v. Bratten, 155 Herchew v. Hamilton, 164 Hereford, Marcune v. 56 Herman, Hoke v. 445 Hermance v. Vernoy, 510 Hermosilla, Nash v. 133 Herndon, McMorris v. 138 Herran, Merriweatber v. 55 Herrick, Davis v. 375 Fisk V. 398 Hogeboom v, 194 V. Bank, 194 V. Borst, 193 V. Whitney, 510 Herring, Clark v. 140 V. Hoppock, 94 V. Sanger, 203 Ilerter, La Farge v. 190 Ileslef V. Sacramento, 138 Heslip, Rabe v. 173 Hess, Braman v. 16] Hench v. Mentzer, 126 Heneh, Gilbert v. 1S9 , Heugh V. Jones, 487 Hewes V. Doddridge, 502 Hewit, Nichols v. 172 Hewitt, McDowell v. 94 V. Buck, 117 Ilewlet V. Flint, 66 Heyer, Mottram v. 98 Heywarci, Cruger v. 335 Heywood, Shell v. 89 XXXVlll INDEX TO AMERICAN CASES CITED. Ileywood, AVhitnej' v. 105 Hilihs V. Kue, I',)2 Hihbard, AVheaton v. 145 Ilibbert v. Carter, 109 Hickerson v. Benson, 106 Ilickinfjbottom, Long v. 510 nick.s, Downey v. 20-1 Long V. 511 McKee V. 158 V. Brown, If.O, 242 V. Burhans, 138 V. Cochran, 485 V. Hotohkiss, 241 Hiester, Mohn v. 178 Higgins V. Breen, 125 Higginson, Cretmer t. 206 V. Gray, 160 High V. Worley, 362 Hight, Weston v. 421 Hildreth, Harwood v. 172 T. Heath, 310 Jliler, Apgar v. 189 Biidd V. 72 Hill, Alcock V. 192 Bank v. 192, 207 Brady v. 208 Brewster v. 60, 333 Davis V. 94 Freeman v. 37S Gilinan v. 93 Kinley v. 190 Toombs V. 401 Watkias v. 204 V. Beach, 397 T. Bowman, 346 V. Campbell. 189 V. Cooley, 155, 156 T. Henry, 140 T. Holraes, 56, 497 V. Penny, 125 V. Sutherland, 208 V. Wentworth, 60 Hillegas, United States v. 193 Hillhouse, Breed r. 140 Hilliard, Frazier v. 94 V. Greenleaf, 243 Hills V. Barnes, 155 Hillyer v. Vanghan, 206 Hillman v. Wilcox, 607 Hilton V. Burley, 207 Wise V. 204 Hiltshue, Gurley v. 202 Hilyard's Estate, 276 Hines, Filson v. 159 Hind V. Longwortby, 374 Hinds V. Chamberlin, 159 Wall V. 67 Hines v. Mullins, 357 Hinckley v. Mare^u, 242 Hinkley, Storer v. 407 Hininan, Chace v. 189 Hitch V. Davis, 421 Hitchcock, Boyd v. 202 Co veil V. 98 Hitchins, Warner v. 255 Hix, Bevil v. 166 Scott V. 510 Hoag V. McGinnis, 133 ITong, Wagman v. 193 Ilobensack, Sheetz v. 200 Hoch, Watt v. 207 Hocker v. Gentry, 354, 362 Hodge V. Combs, 501 Hodges, Duncan v. 157 V. Armstrong, 190 V. Dawes, 403 V. Hollman, 403 V. King, 134 Hodgman v. Smith, 404 Hodgdon v. Hodgdon, 178 V. White, 516 Hodnett v. Tatum, 504 • Hodson V. McConnell, 200 Hoe V. Sanborn, 608 Hoey, Howard v. 509 Hoff's Ai)peal, 445 Hoffman, Bayard v. 378 Cox V. 504 V. Carow, 498 V. Dunlop, 392 V. Foster, 498 V. Smith, 153 Hogan, Bell v. 336 Hoge, Bank v. 192 Hogeboom v. Herrick, 194 Wendover v. 114 Hogins V. Plympton, 507 Hogshead v. Caruth, 200 Hoke V. Herman, 445 Holbrook, Elliott v. 392 Holcombe, Bishop v. 519 Story v. 330 Holden, Allen v. 55 Williams v. 441 V. Bull, 172 v. Dakin, 507 Holdship, Gray v. 67 Holland, Desha v. 395 Field V. 205 Moore v. 90 V. Craft, 362 V. Dale, 519 V. Fuller, 383 V. Hatch, 157 V. Moody, 475 Hollingshead v. McKenzie, 143 Hollingsworth v. Bates, 93 V. Floyd, 191 Holliday, Stockett v. 374 Hollman, Hodges v. 403 Holloway, Byrd v. 441 Keenan v. 138 Roundtree v. 138 Holly, Barton v. 485 Cromwell v. 194 Fairchild v. 206 v. Adams, 421 Holman v. Perry, 485 V. Whiting, 153 Holman's Appeal, 335 Holmes, Castleman v. 205 Hallett v. 192 Hill V. 56, 497 McGinn v. 203 McGuirn v. 202 Shinn v. 432 INDEX TO AMERICAN CASES CITED. XXXIX Holmes v. Decamp, 203 V. Paul, 153 V. Tremper, 67, 69 Holridge, Groodale v. 162 Holt, Graham v. 157 V. Body, 191 V. Kernodle, 404 Homer, Shelton v. 162 Homes v. Smith, 204 Hommell v. Gamewell, 189 Hood, Grier v. 408 V. Railroad Co., 121 Hooe V. Tebbs, 160 Hook, Grant v. 365 V. Gray, 159 V. Ross, 123 Hooker, Pierson v. 381 Hooks, Howell v. 445 Hooper, Beer v. 241 Foster v. 390 Hoopes V. Dundas, 470 Hoover v. Hoover, 180 V. Samaritan Society, 485 V. Tibbiis, 99 Hopbaugh, Chippenger v. 162 Hope V. Johnston, 393 Hopkins, Clark v. 171 Medbury v. 240 Sherill v. 161 Vanada v. 504 White V. 153 V. Blanc, 503 V. Conrad, 208 V. Forsyth, 380 V. Jones, 354 V. Liswell, 140 Hopkirk v. Randolph, 374 Hopping, Hammond v. 161 Hoppock, Grover v. 194 Herring v. 94 Hornbeck, Vanauken v. 155 Home V. Lyeth, 334 Horner, Knowlton v. 262 Horry District v. Harrison, 157 Horsey v. Heath, 383 Horstman v. Gerker, 55 Horton, McLaughlin v. 510 V. Stanley, 262 Hortons v. Townes, 502 Horwitz V. Norris, 348 Hosack, Rogers v. 393 V. Weaver, 498 Hosmer v. True. 132 Hostler, Burgwin v. 383 Hotch v. Taylor, 502 Hotchkiss, Downey v. 143 Hicks V. 241 V. Gage, 507 V. Greenwood, 318 V. Thomas, 285 Hotz's Estate, 470 Houdlette v. Tallman, 93 Houghtaling, Williams v. 207 Houghton, Ilapgood v. 141 Strader v. 193 v. Maynard, 242 Hour V. Clate, 203 House, Drennen v. 406 House, Leonard v. 268 Walker v. 383 V. Fiet, 507 V. House, 69 Houseal's Appeal, 211 Houser v. Association, 303 Houston, Lewis v. 126 Sadler v. 487 Houts V. Showalter, 72 Hovey, Banorgee v. 502 How, Cutler v. 133 Wilbur V. 162 Howard, Ames v. 317 Currier v. 57 Dawes v. 357 Hauff V. 384 King V. 160 Waters v. 448 Wooten V. 58 V. Blackford, 160 V. Brown, 193 V. Hoey, 509 V. Priest, 384 V. Welchman, 153 Howe, Clarke v. 283 Gammon v. 133 Lee V. 123 V. Commissioners, 122 Howell, Field v. 333 Pritchard v. 140 United States v. 192 y. Hooks, 445 V. Johnson, 427 V. Sehenck, 72 V. The People, 204 Hower, Miller v. 144 V. Geeseamen, 210 Howes, Wolfe v. 339 Rowland, Hemstreet v. 404 Hoxie V. Carr, 384, 399 Hoy, Stevenson V. 501 Hoyle, Rankin v. 348 V. Smith, 486 Hoytv. Ins. Co., 252 v. Shelden. 242 Hozier, Peck v. 242 Hubbard, Boynton v. 162 Bridge v. 161 Brooks v. 134 Curtis V. 204 Upton V. 242 V. Davis, 193 V. Guild, 384 Hubbell, Preseott v. 203 V. Carpenter, 195 y. Coudry, 180 Hubbs, Livingston v. 371 Hubby V. Hubby. 106 Huber, Sherick v. 52, 126 y. Zimmerman, 502 Hubler y. Waterman, 211 Hubley v. Long, 334 Huck, United States v. 399 Huckabee v. Swoope, 427 lluckleman v. Miller, 143 nu Ixviii INDEX TO AMERICAN" CASES CITED. Talbot, Larrabee v. 241 Pearson v. 55 Talcott, MeCormick v. 317 Taliaferro, Pratt v. 302 V. Robb, 442 Tally T. Tally, 371 Talmadge, Tracy v. 159 Talmage v. Burlingame, 192 Talman. Bower t. 52 HoncUette v. 93 Patten v. 432 Railroad Company v. 179 Tammany, Leidy v. 56 Tarns, Guy v. 139 Tandy, Moore v. 441 Taney v. Bachtell, 144 Tankersley v. Anderson, 190 Tank, Fish v. 509 Tapley v. Smith, 67 Tappan, Brown v. 159 Sawyer v. 206 Tappen, Hasbrouek v. 134 W Tapscott, Weaver v. 407 Tarkington v. State, 489 Tarleton v. Baker, 167 Smith V. 384 Tarr v. Williams, 486 Tarver v. Nance, 153 V. Tarver, 432 Tate V. Evans, 503 V. Insurance Company, 503 Tatham, Le Roy v. 316 Tatum, Hondett v. 504 Taul V. Everett, 133 Tayloe v. Sandiford, 132, 206 Taylor, Bailey v. 155 Baker v. 319 Branning v. 172 Hoteh V. 502 Kingsbury v. 507 Kirby v. 392 Morrison v. 501 Moseley v. 442 Nevison v. 334 Nicholson v. 93 Robinson v. 408 Rochester v. 163 Sands v. 507 Shute T. 132 Smock V. 56 State V. 160 Steele v. 207 T. Birmingham, 471 T. Drake, 144 V. Galland, 392 T. Jones, 206 v. Robinson, 179 T. Rundell, 140 T. Taylor, 390 V. Townsend, 67 Taymon v. Mitchell, 507 Tazewell v. Smith, 362 Teackle, Bailey v. 471 Boggs v. 243 Tebbs, Hooe v. 160 Tees, Ewing v. 144 Teese, Sharp v. 162 TeUer v. Wetherell, 390 Temple, Gilpin v. 406 Munsell v. 162 V. Cochran, 200 V. Pomroy, 503 Templeman v. Biddle, 72 Ten Eyek v. Vanderpool, 442 Tenants, Eraser v. 504 Terhune v. Colton, 206 Terral v. Adams, 167 Territory v. Redding, 383 Territ v. Bartlett, 162 Terry, Ingram v. 426 Weed V. 144 T. Bissell, 159 V. Olcott, 159 Tew, Lowry v. 55 Thatcher, Dixon v. 126 V. Dinsmore, 203 V. Morris, 160 Thayer, Benneson v. 202 Cook V. 105 Rivers v. 374 T. Stark, 105 V. Thayer, 378 The Active, 82 Antarctic, 207 Ariadne, 161 Atlantic, 257 Aurora, 161, 258 Bridgewater, 257 Brig Nestor, 82 Seneca, Brooks v. 117 Church, Shaw v. 205 V. Henderson, 162 Chusan, 82 County, McCoy v. 56 Draco, 257 " Eastern Star, 82 _ Forrester, 114 Fortitude, 259 General Smith, 82 Golden Gate, 82 Hiram, 161 Hull of a New Brig, Reed v. 82 Jerusalem, 82 Judge, Emory v. 347 Julia, 161 Lillie Mills, 82 Louisa, Packard v. 82 Margaret, 82 Mary, 82 Mary Ann Guest, 99, 119 Mayor, Butler v. 262 Lord V. 178 Williams v. 333 Monsoon, 82 Monte Allegre, 510 Nestor, 82 Ordinary v. McCollum, 207 Overseers, Munford v. 192 Packet, 257 Panama, 257 People, Davis v. 192 People, Judges v. 172 People V. Brooks, 491 T. Chegaray, 489 T. Gibbs, 126 T. Howell, 204 INDEX TO AMERICAN CASES CITED. Ixix The People v. Humphreys, 490 V. Jansen, 194 V. Mercein, 489 V. Olmstead, 490 V. Russel, 193 V. , 489 President v. Wadleigh, 511 Rebecca, 82 Schooner Marion, 82 Ship Fortitude, 82, 258 Howard v. Wissmain, 120 New Jersey, Gardner v. 82 Sloop Hope, Skinner v. 117 Steamboat John Jay, Bogart v. 117 John Owen v. Johnson, 121 Susan G. Owens, Weaver v. 88 Tackle &c. of the America, 82 Texas, Gibbs v. 258 Virgin, 257 William Penn, Crawford v. 259 Young Mechanic, 82 Zephyr, 257 Thing, Hall v. 118 Thomas, Brantley v. 509 Carter v. 442 Cutter V. 406 Ferguson v. 106 Gregory v. 203 Hotchkiss V. 285 Jones V. 72 Lynch v. 426 Rogers V. 98 Stowe V. 331 V. Brady, 159 V. Cameron, 433 V. Folwell, 486 V. Jenks, 210 T. Kelsey, 207 V. Lusk, 398 V. McElwee, 180 V. Reister, 440 V. Thomas, 348 T. Weeks, 316 V. Wilson, 178 Thompson, Arbuckle v. 119 Barrett v. 172 Bledsoe v. 167 Caruth v. 1^1 Davis V. 72 Emerson v. 516 Frazier v. 159 Lewis V. 448 Lichtenthaler v. 191 Magniac v. 202, 373 Mason v. 94 McNair v. 133 Robinson v. 383 Stephens v. 202 Turpin v. 423 United States v. 392 Walrath v. 192 Ward V. 403 V. Alger, 280 V. Ashton, 510 V. Brown, 180, 516 V. Davies, 162 V. Dougherty, 374 V. Ketchum, 160 Thompson v. McCullough, 510 V. Monrow, 178 V. Murry, 486 V. Schmidt, 426 T. Snow, 404 V. Stewart, 601 V. Thompson, 72, 433 V. Young, 242, 178 Thomson, Swift v. 66 Thorn, Gifford v. 354 Storms V. 195 Thorndike, Barrett v. 156 V. Godfrey, 501 Thornton, Jordan v. 426 Randall v. 507 V. Burch, 334 V. Dobney, 193 V. Henry, 143 V. Williams, 204 V. Wynn, 140 Thoroughgood v. Walker, 133 Thorp, Dunn v. 373 Thrall v. Newall, 510 Thrasher v. Ingram, 285, 426 Threadgill, Coppedge v. 477 Throckmorton, Fowler v. 162 Throop, Bank v. 172 Thurston v. James, 394 V. McKown, 497 V. Perclval, 162 Tibbits, Hoover, v. 99 Tichout, Emery v. 206 Tiernan, Bower v. 192 Pierce v. 397, 404 Slatter v. 200 V. Jackson, 519 V. Poor, 487 Tiernans, Harrisons v. 158 Tilden, Speneer v. 133 Tillinghurst v. Champlin, 384, 401 Tillotson, United States v. 193 Tilton, Trumbull v. 139 V. Tilton, 441 Timberlake v. Graves, 334 Timrod v. Shoolbred, 508 Tindale v. Meeker, 179 Tingley v. Cutler, 134 White V. 134 Tinsley, Mercer v. 105 V. Anderson, 190 V. Oliver, 190 Tinsman, FauU v. 55 Tioga, People v. 54 V. Seneca, 138 Tisdale, Burtus v. 397 Titus, Cobb V. 161 Jonson V. 510 Railroad Co. v. 380 V. Scantling, 262 Tobey v. Barber, 202 Tobias v. Frances, 67 Tobie, Rand v. 162 Toby, Randon v. 140 v. Reed, 73 Todd, Jaques v. 501 Mowry v. 619 V. Rough, 262 Toller, Armstrong v. 159 Ixx INDEX TO AMERICAN" CASES CITED. Toller V. Armstrong, 159 ToJliver, Baird v. 132 Tolson V. Tolson, 347 Tom V. Goodrich, 189 Tompkins, Anderson v. 408 Freeman v. 72 St. Andrew's Church v. 172 Strong V. 1(52 V. Tompkins, 432 Toombs T. Hill, 401 Topham v. lloche, 504 Topping, Bank v. 442 Toris V. Long, 508 Torrey v. Baxter, 204 Torry v. Hadley, 204 V. Robinson, 126 Toumin v. Buchanan, 378 Towar v. Harrington, 210 Towell V. Gatewood, 506 Towers v. Hagner, 485 Towle V. Lovet, 125 Towne, Smith v. 426 Townes, Hortons v. 502 Towns V. Riddle, 193 Townsend, Fleming v. 378 Taylor v. 67 V. Briggs, 138 , V. Maynard, 374 V. Smith, 178 V. Riddle, 193, 389 Townsley v. Sumrall, 153 Towsey, Gardiner v. 138 Tracey v. Wikoff, 207 Tracy", Erie. v. 262 V. Talmadge, 159 Train, Wheeler v. 52 Transportation Co., Bank v. 121 Trapnall v. Hattier, 53 Trask v. Donohue, 433 Traverse, Stille v. 119 Travis v. Bishop, 105 Treadwell, Bank v. 395 v. Brown, 401 T. Moore, 206 V. Roscoe, 398 Treasurer v. Friott, 390 Tremper, Holmes v. 67, 69 Trevilian, Miller v. 205 Trezevant, Tunno v. 373, 400 Trice v. Cochran, 510 Trigg, Pierce v. 384 Pilkington v. 53 v. Faris, 510 Tripner v. Abrahams, 374 Tritts v. Colwell, 519, 475 Trotter, Cocke v. 126 Troup V. Smith, 120 v. Wood, 172 Wilson V. 504 Troutman, Alexander v. 134 V. Barnett, 161 Troy, Bell v. 500 Truax, Rose v. 159 True, Hosmer v. 132 Trull, Cole v. 208 Dayton v. 204 v. Fuller, 66 Trumbo, Jordan v. 193 Trumbull, White v. 208 V. Tilton, 139 Trumper, Defreeze v. 510 Truscott v. King, 172 Trustees, Bailey v. 144 Foster V. 190 Jaques v. 485 Mayor v. 178 Wright V. 362 V. Ja(iues, 486 V. Miller, 192 Tucker, Badlam v. 126 Clark v. 144 Gaunt V. 422 Price V. 134 Wells V. 420 V. Bishop, 354 V. Oxley, 397 V. Peaslee, 408 V. Starks, 433 Tuckerman v. Newhall, 394 Tudor V. Goodloe, 192 Wiggin V. 392 Tunnehill, Gunn v. 191 Tunno v. Trezevant, 400 Tunstall, Pope v. 202 V. Pollard, 516 Tuqua, Commonwealth v. 54 Turcher, Jones v. 191 Smith V. 105 Turner, Fadden v. 105 Ferguson v. 192 Hanover v. 141 Hunt V. 159 North V. 55 Suckley v. 502 V. Bissell, 404 v. Burrows, 117 V. Calvert, 160 V. Chrisman, 140 V. Fenner, 143 V. Tuttle, 510 Turney, Morrow v. 105 V. Bank, 160 Turnley, Bank v. 500 Turnpike Co., Anderson v. 203 Selleck v. 206 Turpin v. Thompson, 423 Turrentine, Nice v. 0% Turrill v. Boynton, 193 Tuthill V. Davis, 161 Tuttle, Turner V. 510 V. Swett, 144 Tuxbury v. Miller, 162 Tygart v. Peeples, 432 Tyler, Carroll v. 162 V. Dyer, 262 V. Webb, 262 Tyre, Sims v. 380 V. Causay, 507 Tyson, Denison v. 503 V. Pollock, 203 T. Robinson, 262 .U. Ulrich, Rewalt v. 335 V. Voneida, 172 INDEX TO AMERICAN CASES CITED. Ixxi Underhill, Low v. 193 Van Courtlandt v. 262 Underwood, Ridtjway v. 374 United States, Boody v. 206 Farrar v. 160 Jones V. 206 Locke V. 193 Speake v. 155 Smith V. 160 V. Ames, 263 T. Daniel, 125 V. Duncan, 180 ^ V. Green, 489 • v. Gurney, 133 T. Hillegas, 193 V. Howell, 192 T. Huck, 399 V. Hunt, 193 V Kirkpatrick, 194, 206 V. Linn, 155 v. Lyman, 205 V. McLemore, 207 V. Nieholl, 294 V. Patterson, 207 V. Price, 204 V. Russell, 155 T. Simpson, 193 v. Thompson, 392 V. Tillotson, 193 V. Wardwell, 206 V. Wilson, 242 Upclurch V. Norsworthy, 426 Uphtm V. Brimhall, 160 V. Lefavour, 206 Uptm, Reed v. 203 V. Hubbard, 242 Usilon V. Usilton, 336 Uzza V. Mack, 191 Valeitine, Johnson v. 353 V. Foster, 140 V. Piper, 504 V. Valentine, 262, 489 Valbn V. Life Association, 252 VanAllen, Anderson v. 518 V. Vanderpool, 504 Alstyne v. Wimple,* 159 Amringe v. Morton, 155 V. Peabody, 502 Arsdale, Van Raugh v. 241 Braeklin v. Fonda, 509 Courtlandt v. Underhill, 262 Doren v. Everitt, 72 Duser, Ward v. 279 Epps V. Dilleye, 202 Hook V. Whitlock, 241 Horn, Osborne v. 357 Kirk, White v. 120 Marter V. Babcock, 164 Ness V. Pacard, 67, 69 Pelt, Warren v. 507 Raugh V. Van Arsdale, 241 Rensselaer, L'Amoreaux v. 487 Ludlow V. 162 Van Rensselaer v. Roberts, 206 Riper v. Van Riper, 440 Sautvoord v. St. John, 121 Slyck, Seymour v. 207 Tuyl, Williams v. 157 Vechtin v. Graves, 418 Vleet V. Jones, 205 Vorst, Morris Canal v. 203 Wagener v. Baldwin, 445 Vanada v. Hopkiris, 504 Vananken v. Hornbeck, 155 Vance v. Campbell, 471 • V. Monroe, 207 Suydam v. 193 Williams v. 508 Vancleave, Williams v. 471 Vandenheuvel v. Storrs, 381 Vanderburgh v. Hall, 404 Vanderen, Morris v. 155 Vanderhorst v. McTaggart, 510 Vanderpoel, Ten Eyck v. 442 Van Allen v. 504 Vanderpool, Franklin v. 204 Vanderslice,. Commonwealth V. 178, 207 Vandusen, Coterill v. 406 Vanhook v. Barnett, 157 Vanhorne v. Dorrance, 155 Vanhouten v. Reilly, 55, 56 Vanmeter, Bank v. 153 Vanuxem v. Hazlehursts, 242 Vargas, Newhall v. 102 Varner v. Nobleborough, 203 Varnum, Riddle v. 94 Varrell v. Wendell, 347 Vass, Ward v. 191 Vassar v. Camp, 403 Vasse, Comegys v. 54, 55 Vaughan, Hillyer v. 206 Keen v. 203 V. Campbell, 508 V. Vaughan, 284, 427 V. Winklee, 125 Vaughn V. Bell, 105 V. Lovejoy, 471 Vaugh V. Haldeman, 67 Vaux, Snyder v. 52, 53 Venable v. Levick, 408 Venning v. Gault, 508 Ventress v. Smith, 498 Verdenburgh, Waddington v. 190 Vernon, Guery v. 335 Vernoy, Hermance v. 510 Verree v. Hughes, 178 Very v. Levy, 503 Vickery v. Benson, 156 Vick, Lyon v. 427 Vilas V. Pusey, 192 Vincent v. Groom, 162 Vingas, Newhall v. 98 Vining, Graham v. 127 V. Gilbreth, 93 Vironneau v. Pegrnm, 486 Viset V. Bertrand, 139 Vliet V. Camp, 158 Voneida, Ulrich v. 172 Voorhis v. Child, 383 V. Freeman, 66, 70 Vroom V. Smith, 159 Ixxii INDEX TO AMERICAN CASES CITED. W. Wade, Coleman v. 263 Green v. 191 V. Green, 191 y. Withington, 155 Wadhams, Missionary Society v. 485 Waddington, Griswold v. 162 Seamen v. 162 V. Verdenburgh, 190 Wadleigh, The President v. 511 Wadsworth v. Allen, 193 V. Manning, 404 Wagener, Bailey v. 445 Wagman v. Hoag, 193 Wagner v. Ellis, 488 Woodhull V. 240 Wagner's Estate, 486 Waher, Reynolds v. 408 Waine v. Elderkin, 262 Waite, Fitch v. 200 McLaughlin v. 78 Wait V. Brewster. 204, 404 Wakeley, Pack v. 262 Walbridge, Hall v. 125 Walcot V. Pomeroy, 52 Waldo, Missroon v. 508 V. Belcher, 94 Waler, Ralston v. 347 Wales, Baxter v. 133 Walker, Bank v. 153, 190 Berry v. 160 Block V. 57 Blunt V. 203 Foster v. 194 Gapiblin t. 57 Gibson v. 486 Lewis V. 421 Noble V. 161 Silter V. 398 Sims V. 422 Thoroughgood V. 133 T. Bank, 159 v. Craig, 440 V. Curvey, 200 V. Eastman, 139 V. Engler, 134 V. Eyth, 211, 400 V. House, 383 T. McCulloch, 392 V. Prowder, 357 V. Sherman, 66, 67 V. Skipwith, 501 Y. Walker, 426, 263 Wallace, Ballume v. 105 Carlisle v. 87 Morrill v. 507 Scull V. 516 V. Agry, 203 V. Coston, 485 V. Farman, 205 V Harmstead, 156 V. AYallace, 445 Wallack, Dermott v. 134 Waller, McKinney v. 192 V. Long, 133 Wallingsford v. Allen, 375 Wallis, Levy v. 106 Walls V. Stewart, 446 Wall V. Hinds, 67 Walmsley v. Read, 432 Wain V. O'Conner, 71 Walrath v. Thompson, 192 Walsh, Mowry v. 498 Oliver v. 54 T. Bailie, 192 y. Nourse, 242 y. Peirce, 500 Walt y. Harper, 162 Walter v. Radcliffe, 516 v. Ross, 119 Walters r. Nettleton, 128 Walton, Lusher v. 263 Martin v. 503 v. Ross, 99 v. AValton, 445 Wampole, Dallam v. 485 Waples V. Mclivaine, 125 Ward, Cameron v. 143 Doolin V. 162 Gale V. 66 Gulick V. 162 Hayes v. 191 Jones y. 207 Ladson v. 448 Reynolds v. 192 Shepherd v. 396 Smithwick v. 394 Stark v. 378 Woodrop V. 397 Young V. 475 y. Barber, 383 y. Coffield, 448 V. Johnson, 204, 389, 392 y. Saunders, 354 y. Thompson, 403 y. Van Duser, 279 y. Vass, 191 y. AVhitney, 120 Warden v. Eden, 518 Clayton v. 441 Warden v. Greer, 120 Wood v. 375 Wardwell, United States y. 206 Ware, Smith v. 138 v. Cook, 354 V. Sharp, 486 y. Stephenson, .144 Warford v. Colvin, 432 Waring, Gallagher v. 509 Lang V. 384 Oatfield V. 138 V. Edmonds, 423 Warner, Beardsley v. 193 Hunter v. 94 Jones V. 504 V. Hitchins, 255 y. Martin, 502 y. Whillaker, 55 Warnick, Taffe v. 67 V. Grosholz, 144 Warning, Lang v. 383 Warren, Aldrich v. 497 Banchor v. 93 Conroy v. 497 Rathbone v. 192 INDEX TO AMERICAN CASES CITED. Ixxiii Warren v. Crabtree, 159 V. Skinner, 202 V. Van Pelt, 507 V. Whitney, 140 v. Wigfall, 445 Washabough, Anderson v. 440 Washburn, Pingry v. 1G2 Wheeler v. 194 V. Bank, 397 V. Franklin, 280 V. Gould, 316 Washington, Brooke v. 384 Univ'ty, Conkling v. 397, 404 Wason V. Rowe, 507 Water v. McClellan, 105 Waterbury, Dodge v. 262 Waterman, Hubler v. 211 V. Matteson, 54 Waters, Powell v. 153, 161 V. Howard, 448 V. Riley, 390 V. Simpson, 138, 192 Waterston Manufacturing Co. v. 501 Wathen, Smoot v. 380 Watkins, Price v. 362 Slocumb V. 155 V. Kirkpatrick, 151 V. Halstead, 138 V. Hill, 204 Watkinson v. Ingleby, 202 Watmough, Morgan v. 398 Watson, Allen v. 262 Bates V. 159 Boykin v. 390 Fries v. 178 Goodyear v. 190 Reddish v. 192 Sanders v. 190 V. Boatwright, 508 V. Browne, 242 T. Fletcher, 167 V. Owens, 203, 396 Watt, Logan v. 432 V. Hoch, 207 V. Sheppard, 132 Watts V. Deavor, 196 V. Kinney, 190 Waud V. Waud, 490 Waugh, Pitts V. 395 V. Mitchell, 262 Wayman v. J^pes, 370 Wayne v. Kirby, 192 Weakley v. Bell, 194, 203 Weather v. Mudd, 200 Weatherhead, Sewell v. 433 Weatherhedd v. Boyers, 160 Weaver, Brigham v. 105 Hosack V. 498 Jewett V. 125 Roundtree v. 138 v. Laurence, 52 V. Lawrence, 126 V. Russell, 200 V. Tapscott, 407 V. The Susan G. Owens, 88 Webb, Brown v. 105 Galway v. 263 Graves v. 190 Webb, Parsons v. 502 Potter V. 432 Snyder v. 374 Tyler v. 262 V. Goldsmith, 202 V. Miller, 200 V. Pierce, 258 V. Powers, 322, 330 Webber v. I^^es, 263 V. Williams College, 503 Weber v. Samuel, 370, 211 Webster, Association v. 304 Page V. 193 V. Cobb, 151 V. Drinkwater, 138 Weed, Johnson v. 202 V. Carpenter, 504 V. Snow, 203 V. Terry, 144 Weekly v. Burnham, 138 Weeks, Insurance Company v. 200 Thomas v. 316 V. Lippencott, 159 V. Sego, 486 Weem v. Bryan, 72 Wegtly V. Railroad, 339 Weimer v. Clement, 507 Weire v. Davenport, 54 Welch, Hawkins v. 160 v. Mandeville, 55, 56 Welcbman, Howard v. 153 Weld V. Cutler, 106 Welling, Rice v. 161 Wellington v. Gary, 192 WeUs, Allen v. 398 Berryhill v. 179 Heath v. 516 Myers v. 203 Scott V. 94 V. Dain, 262 V. Lain, 262 V. Spears, 510 V. Tucker, 420 T. Wells, 376 Welsh V. Cabot, 257 V. Carter, 507 V. Mandeville, 519 White V. 98 Welty V. Lentmyer, 263 Wendell, Belknap v. 404 Crosby v. 471 Durell V. 394 Varrell v. 347 Wendover v. Hogeboom, 114 Wenrich, HefFner v. 155 Wentworth, Caldwell v. 206 Hill V. 66 Shapleigh v. 105 V. Leonard, 105 Wescott V. Gunn, 105 Weslerto v. De AVitt, 423 West, Roby v. 159 V. Berlin, 119 V. Cunningham, 508 V. Smith, 284 V. West, 485, 255 Westcott V. King, 190 Weston, Babcock v. 242 Ixxiv INDEX TO AMERICAN CASES CITED. Weston V. Hight, 421 V. Penniman, 114 Wetherbee v. Foster, 67 Wetherell, Teller v. 390 Wetherill, Flanagin v. 179 Jackson v. 507 V. Nelson, 507 Wetmore v. Scovell, 330 Wetzell V. Bussard, 140 V. Sponsler, 193 Whale, Sicard v. 242 Wharley v. AVharley, 445 Wharton, Kingston v. 139 Wheatley, Cheep v. 125 Keene v. 323 V. Colhoun, 384 Wheaton v. Peters, 319, 330 V. Sexton, 374 Wheeler, Anderson y. 241 Cowan V. 504 . Fisher v. 241 Goodale v. 504 Hughes V. 161, 204 Humphreys v. 204 Marsh v. 362 Mead v. 134 V. Guild, 497 V. Russell, 158 V. Train, 52 V. Washburn, 194 V. AVheeier, 55, 56, 519 Wheelock v. Cozzens, 53 V. Leonard, 242 Wheelright, Cheston v. 206 V. Depeyster, 498 Whilden v. Whilden, 357 Whipple V. Dow, 357 •Whislow V. ChiflFelle, 384 Whitaker, Blantier v. 503 Cozzins V. 508 Eaton V. 143 Gwinn v. 178, 207 V. Cone, 162 Whitall V. Clark, 485 Whitcher, Carlton v. 159 Whitcomb v. Preston, 133 White, Beach v. 374 Brooks V. 202 Cole V. 105 Croft V. 156 Easter v. 144 Hodgon V. 516 Powell V. 191 Prior V. 105 Kaymond v. 67 Slaver v. 398 Smeed v. 191 V. Arndt, 66, 67 V. Bank, 160 V. Beattie, 444 V. Buss, 167 V. Canfield, 241 V. Dougherty, 397 V. Hopkins, 153 V. Insurance Company, 383, 397 V. Jordan, 202 V. Puryean, 263 V. Railroad Company, 56 White V. Smith, 389 V. Tingley, 134 V. Trumb\ill, 208 V. Van Kirk, 120 V. Welsh, 98 V. M'hite, 285, 426 V. AVinchester, 445 White's Appeal, 67 Whitefield v. McLeod, 508 AVhitesides, Robeson v. 132 AVhitehead, Shirley v. 421 AVhiting, Baker v. 371 Holman v. 153 V. ]5raston, 67, 69 V. Daniel, 157 Whitlock, Muldon v. 202 AVhitman v. Freese, 507 Whitmer v. Frye, 155 Whitmarsh v. Cutting, 72 Whitney, Burbank v. 346 Crocker v. 55 Herrick v. 510 Ward V. 120 Warren v. 140 V. Eramett, 312, 316 V. Heywood, 105 V. Ladd, 398 V. Lowell, 105 V. Slayton, 164 V. Sutton, 506 Whitsell V. Womack, 155, 159 AVhittaker, Warner v. 55 AVhittemore v. Adams, 241 V. Cutter, 316 Whitter, Jones v. 519 Whittle V. Skinner, 193 AVhittock, Van Hook v. 241 Whoolery, Fisher v. 62 Wickersham, Mason v. 202 Wicker v. Pope, 156 AVickes v. Caulk, 156 AVickham v. Conklin, 162 AVickliffe, Guthrie v. 207 AViener v. Davis, 210 AYiester, Sneed v. 380 Wigfull, AVarren v. 445 Wiggin, Ladd v. 440 Simpson v. 508 V. Swett, 276- V. Tudor, 392 Wiggins, Chancellor v. 510 ^ V. Anderson, 200 AVigginton, Greenough v. 487 AAMghtman, Lothrop v. 398 AVightman, Ripley v. 339 AVi'kotr, Tracey v. 207 Wilbur V. Gilmore, 127 V. How, 162 Wilcher v. Hamilton, 178 AVilcomb, King v. 68 AVilcos, Bernard v. 383 Denton v. 162 Harrison v. 201 Hilman v. 507 Provost V. 106 Railroad Company v. 200 Savings Bank v. 303 Wild, Sommers v. 55 INDEX TO AMERICAN CASES CITED, Ixxv Wilder, Gaylor v. 314, 316 Huntington v. 501 Rice V. 139 V. Keeler, 383, 397 Wildes V. Fessenden, 202 Wiles, Hall v. 312 V. Maddox, 398 Wiley V. Gray, 374 V. Moore, 157 Wilkes V. Clark, 395 V. Rogers, 357 Wilkin, Strong v. 485 Wilkins, Bank v. 401 Carley v. 507 Corley v. 506 Dunklin v. 56 Mirrian v. 140 Wilkinson v. Bank, 123 V. Jett, 404 V. Wright, 485 Willard, Erickson v. 345 Frost V. 105 Jackson v. 200 Phelps V. 89 • V. Beckford, 263 Wilcocks, Greely v. 56 Willett, Jones v. 56 Willey, Fessenden v. 242 Williams, Alexander v. 426 Allen V. 119 Blair v. 240 Boyer v. 73 Briggs V. 206 Clementson v. 140 Corley v. 162 Crook V. 162 Dakin v. 132 Dean v. 207 Denning v. 376 Dey V. 448 Newell V. 151 Pearson t. 134 Reawick v. 153 Smith V. 510 Streefer v. 132 Strong V. 448 Sumner v. 160 Tarr v. 486 Thornton v. 204 V. Allen, 94 V. Bank, 178 V. Benedict, 180 T. Cowden, 471 V. Craig, 260 V. Crary, 448 V. Donaldson, 486 V. Ehringhaus, 380 V. Getty, 501 V. Green, 134 V. Hall, 371 V. ilolden, 441 V. Iloutaling, 207 ' V. Moore, 189 V. Price, 180 V. Soulier, 404 V. Spafford, 509 V. Stanton, 202 V. The Mayor, 333 Williams v. Vance, 508 V, Vancleave, 471 V. Van Tuyl, 157 v. Williams, 161, 189, 490 V. Woodman, 167 Williams's App., 441 College, Webber v. 503 Williamson, Gumming v. 486 Millor V. 486 V. Beckham, 486 V. Hall, 189 V. Sammons, 510 Willing V. Peters, 140, 362 WiUings V. Consequa, 204, 389, 392, 507 Wmis, McKim v. 241 V. Parsons, 200 Williston, Overton v. 66 Wilmerding, Cartwright v. 99 V. Hart, 84 Wilson, Allison v. 362 Chevallier v. 421 Coe V. 200 Crawford v. 508 Dehart v. 501 Doty V. 138 Fant V. 160 Gray v. 262, 381 Kennerly v. 125 Kimball v. 381 Miller v. 126 Mullen V. 375 Perry v. 126 Pitcher v. 144 Stone V. 53 Thomas v. 178 United States v. 242 V. Albright, 200 V. Bank, 194 v. Barnum, 318 V. Buchanan, 378 V. Clark, 144 V. Conine, 397 V. Ferguson, 511 V. Glover, 193 V. Leslie, 105 V. Rine, 426 v. Rosseau, 314, 317 V. Shackleford, 507 V. Simpson, 314 V. Society, 158 V. Soper, 383 V. Troup, 504 Wilt, Snyder v. 153 V. Franklin, 62 Wilter V. Richards, 398 Wimple, Van Alstyne v. 159 Winans v. Company. 317 Winchester, Knapp v. 78 White V. 445 V. Beardin, 190 Winder, Diffenderfer v. 370 Windley, Merritt v. 426 Windows v. Mitchell, 421 AVinebrenner's Appeal, 190 Winklee, Vaughan v. 125 Winkley, Odwine v. 316 Winn, Albert v. 373 Ixxvi INDEX TO AMERICAN CASES CITED. . Winn, Buck v. 384 State V. 182 Winship v. Bank, 307 Winslow, Douglass v. 398 Leonard v. 93, 94 Mitchell V. 55 Parsons v. 162, 470 T. Leonard, 86 V. Mercliant's Ins. Co., 66, 69 V. Norton, 119 Winsor, Kendall v. 318 V. Lombard, 507 V. McLellan, 105 Winter, Donaldson v. 433 V. Ludlow, 371 Wintersmith v. Pointer, 397 Winters v. McGhee, 127 Winthrop, Sullivan v. 357 Winton, Bostick v. 351 Wintringham v. Wintringham, 172 Wise, Bank v. 339 V. Hilton, 204 Wiseman, Smith v. 354 Wiser v. Blackly, 371 Wister, Miles v. 357 Witham v. Butterfield, 105 Withers, Barry v. 519 V. Atkinson, 156 V. Yeadon, 346 Withington, Heath v. 485 Nightingale v. 491 Wade V. 155 Witter, Jones v. 57 Witmoyer, Kloif v. 504 Wolfersberger, Worman v. 210 Wolf V. Wyeth, 204 Wolfe, Rudy v. 189 T. Howes, 339 V. Myers, 121 Womack, Foard v. 153 Whitsell V. 155, 159 V. Greenwood, 354 Wood, Bartlett v. 66 Byxbie v. 54 Bridges v. 376 Egberts v. 383, 400 Frost V. 504 Gillespie v. 122 Green v. 123 Kitteridge v. 71, 72 Troup V. 172 T. Ashe, 509 V.' Edgar, 200 V. Leland, 189 V. Malan, 242 V. McCaen, 502 V. Partridge, 518 V. Savage, 374 V. Underbill, 317 V. Warden, 375 V. Yeatman, 99 Woodbridge, Davenport v. 518 V. Wright, 242 Woodbury, Bonaffe v. 205 V. Larned, 503 Woodcock v. Parker, 316 Wooden v. Butler, 55 Woodford v. McClanahan, 503 Woodford v. Paterson, 144 Woodhull V. Wagner, 240 Woodley v. Findlay, 335 Woodman, AVilliams v. 167 Woodrop V. Ward, 397 Woodruff, McAlpin v. 334 Banking Company, 373 Binns v. 330 V. French, 200 Woods, Carleton v. 159 Chism V. 570 Conroy v. 400 Ensign v. 384 Seixas v. 507 Shattuck V. 162 Yeatman v. 384 V. Moore, 446 V. Sullivan, 445 Woodson, Bowles v. 144 V. Perkins, 485 « Woodward, Bank v. 192 Haskin v. 66 Miller V. 290 V. Harris, 123 V. Woodward, 374 Woodworth, Rankin v. 56 V. Bank, 155 Woolley v. Constant, 156 Woolwich V. Forrest, 160 Woombwell, Keith v. 373 Wooten V. Howard, 58 Worcester v. Eaton, 162 Workheiser, Henning v. 155 Workman v. Guthrie, 504 Work v. Kase, 153 Worley, High v. 362 Wprm'an v. Wolfersberger, 210 Wormley v. Wormley, 364 Woorall, Graves v. 162 Worrall's Accounts, 375 Worrall v. Gheen, 157 Worrel v. McClinaghan, 134 Worster, Scudder v. 93 Worthington, Easton v. 498 V. Ferguson, 190 V. Shipley, 378 Worthy v. Johnson, 498, 510 Wrary, Beatty v. 383 Wrenu, Cunningham v. 193 Wren, Stout v. 162 Wright, Bulkley v. 389 Dillon V. 53 Eastman v. 55, 56, 519 Hart V. 508 Heath v. 330 Navigation- Co. v. 164 Lloyd V. 96 Wilkinson v. 485 Woodbridge v. 242 V. Abbott, 178 V. Boynton, 504 V. Brown, 486 V. Judson, 292 V. Steele, 148 V. Stockton, 193 V. Storrs, 193 V. Trustees, 362 V. Wright, 155 IXDEX TO AMERICAN CASES CITED. Ixxvii Wright V. Wright. 424 Wurtz, Cameron v. 180 Joy V. 393 Wyatt, Crosby V. 192 Wyckoflf, Seymour v. 504 V. Loughead, 160 Wyeth v. Stone, 312, 315, SI'S Wolf V. 204 Wylly V. Collins, 486 Wyman, Gushing v. 203 Mills V. 138 T. Mitchell. 241 T. Smith, 144 Wynn, Starret v. 487 Thornton v. 140 V. Brooke, 189 Wynne, Harris v. 191 Wyse, Stowe v. 501 Y. Yale, Lewis v. 123 V. Yale, 383, 397 Yancey v. Littlejohn, 192 Yarborough, Knight v. 347 Miller v. 508 Eeynolds v. 133 Yard v. Fatten, 190 Yates, Barnard v. 508 Yates V. Donaldson, 153 Yeadon, AVithers v. 346 i Yearsley's Estate, 399 Yeatman, Beaumont v. 106 Yeatman, Wood v. 99 V. Woods, 384 Yeaton v. Roberts, 354 Yeomans v. Chatterton, 162 Yerger v. Rains, 162 Youghe V. Linton, 190 Young, McCormick v. 160 Simpson v. 390 Thompson v. 242 V. Austin, 94 V. Carson, 444 V, Kimball, 83, 126 T. Stoner, 353 V. Ward, 475 V. Young, 263 Youngblood v. Keadle, 105 Yrquhart v. Mclver, 503 Yundt V. Roberts, 159 Young, Kuns v. 144 Z. Zacharie, Boyle v. 240 Zachrisson v. Ahman, 119 Zarega V. Poppe, 120 Zeigler v. Eckart, 448 Zellweger v. CaflFe, 153 Zent V. Heart, 196 Zimmerman, Huber v. 502 Storer v. 362 Zengizer's App., 400 Zule v. Zule, 338 INDEX TO THE ENGLISH CASES CITED IK THE AMEEICAK NOTES. Adams, Ray v. 347 Allwood V. Heywood, 64. Assurance Co., Dalby v. 251 Atkins; Wright v. 347 Atkinson v. Baker, 64 Attorney-General, Doyley t. 347 Aylett V. Dodd, 134 Baker, Atkinson v. 64 Ballam, Justin v. 81 Barker, Roberts v. 71 Bell V. Humphries, 117 Bellamy v. Majoribanks, 150 Bernardiston, AVatkinson v. 81 Bloxam v. Saunders, 101 Boardman v. Sill, 84 Boddington, AVitts v. 347 Bowker, Wilmshurst v. 101 Brittain, Sims v. 118 Brown v. Higgs, 346 Bullock V. Dommdt, 255 Buxton V. Snec, 81 Carmichael, Wilkins v. 81 Carter, Hibbert v. 119 Clarke, Prevost v. 346 Clay V. Harrison, 101 Clement, Hoare v. 81 Cole V. Wade, 347 Coleman, Cruwys v. 347 Crawford, Lucena v. 250 Croach v. Railway Co., 121 Cruwys v. Coleman, 347 Dalby v. Assurance Co., 251 Dodd, Aylett V. 134 Dommdt, Bullock v. 255 Doyley v. Attorney- General, 347 Dudley v. AVarde, 09 Elwes V. Mawe, 69 Ex parte Bland, 81 Halket, 81 Shank, 81 Franklin v. Hosier, 81 Gainer, White v. 84 Garnet, Pierson v. 346 Glyn, Harding v. .347 Grant v. Lynam, 347 Gyles, Woodward v. 134 Haine, Payne v. 255 Harding v. Glyn, 347 The pages referred to are those of the present volume. Hare v. Herton, 70 Harrison, Clay v. 101 Herton, Hare v. 70 Heywood, Allwood v. 64 Hibbert V. Carter, 119 Higgs, Brown v. 346 Hoare v. Clement, 81 Hosier, Franklin v. 81 Houghton V. Matthews, 84 Humphries, Bell v. 117 Jeffries v. Railroad Co., 78 Justin V. Ballam, 81 Kruger v. AVilcox, 84 La Ysabel, 258 Lawten v. Lawten, 69 Lord Buckhurst's Case, 64 Lovet V. Needham, 60 Low V. Routledge, 321 Lucena v. Crawford, 250 Lynam, Grant v. 347 Mahon v. Savage, 347 Majoribanks, Bellamy v. 150 Mansborough v. Maton, 69 Maton, Mansborough v. 69 Matthews, Houghton v. 84 Maundrell v. Maundrell, 50 Mawe, Elwes v. 69 Milne, Walmsley v. 70, 73 Mitchell, Raitt v. 81 Muschamp v. Railway Co., 121 Needham, Lovet v. 50 Ottey, Rex v. 69 Outhwaite, Wentworth v. 101 Patterson v. Powell, 250 Payne v. Haine, 255 Pelt, Robinson v. 369 Penistone, Waterfall v. 69 Penton v. Robart, 69 Peterson, Rolfe v. 134 Pierson v. Garnet, 346 Powell, Patterson v. 250 Prevost v. Clarke, 346 Railway Co., Crouch v. 121 Jeffries v. 78 Muschamp v. 121 Scotthorn v. 121 Raitt V. Mitchell, 81 Ray V. Adams, 347 IXXX IXDEX TO ENGLISH CASES CITED IN AMERICAN NOTES. Rex V. Ottey, 69 Robart, Penton v. 69 Roberts v. Barker, 71 Robinson v. Pelt, 369 Rolfe V. Peterson, ]34 Routledge, Low r. 321 Sargon, Stubbs v. 347 " Saunders, Bloxam v. 101 Savage, Mahon v. 347 Scotthorn v. Railway Company, 121 Shaw V. Shaw 64 Shrewsbury v. The Sloop Two Friends, 82 Sill, Boardman v. 84 Sims V. Brittain, 118 Snec, Buxton v. 81 Stubbs V. Sargon, 347 The Alexander, 81, 259 Browmina, 81 Emancipation, 25? Gratitudine, 257 Harmonie, 81' Heart of Oak, 258 Hero, 257 Jane, 257 John, 82 The Nelson, 257 Neptune, 81 Osmanli, 258 Prince of Saxe Coburg, 258 Reliance, 257 Rubicon, 257 Sloop Two Friends, Shrewsbury v. 82 Trident, 258 Vibelia, 81, 257 Zodiac, 81, 257 Villiers v. Villiers, 50 Wade, Cole v. 347 AValmsley v. Milne, 70, 73 Warde, Dudley v. 67 Waterfall v. Penistone, 69 Watkinson v. Bernardislon, 81 Wentworth v. Outhwaite, 101 Whitchurch v. Whitchurch, 50 White V. Gainer, 84 Wilcox, Kruger v. 84 Wilkins v. Carmichael, 81 Wilmshurst v. Bowker, 101 Witts V. Boddington, 347 Woodward v. Gyles, 134 Wright V. Atkins, 347 IKDEX TO ENGLISH CASES CITED. The pages referred to are those between brackets [ ], A. Abbot V. Blofield, 345 Abbott V. Rogers, 197 Abergavenny, Earl of, Morgan v. 19 Abingdon, Lord, Clark v. 103 Acaster, Rogers v. 352 Accidental Death Insurance Company, Shil- ling v.'160 Ackerman, Ex parte, 287 Acraman v. Herniman, 96 Acton V. Acton, 317 V. White, 357 V. Woodgate, 274 McNeille v. 289 Adam v. Statham, 173 AVilkinson v. 322 Adams, Malkin v. 125 V. Paynter, 266 Adcock, Walter v. 122 Wood V. 173 Addenbrooke, Foley v. 280 Addison v. Round, 24 Adney, AVennall v. 72 Aflalo, Grove v. 40 Agar V. Lisle, 23 Aitcheson v. Cargey, 173 Cargey v. 173 Alexander v. Alexander, 250 Dover v. 322 Alford, Sunbolf v. 28 Allatt V. Carr, 33 Allen, Brown v. 317 Testing V. 244 Hobby V. 353 Alleyn v. Alleyn, 319 Allwood V. Heywood, 12 Alsager v. Spalding, 116 Ambergate, &c., Railway Company v. Nor- cliffe, 193 Ames V. Parkinson, 183 Amicable Assurance Society v. Holland, 160 Amies v. Skillern, 277 Amis, Witt v. 300 Amyot, Brown v. 241 Anchor Reversionary Company, Limited, Marriott v. 56 Anderson v. Coxeter, 175 V. Martindale, 278 Petty V. 353 Price V. 240 An''rew v. Andrew, 239 Andrews v. Diggs, 93 V. Partington, 256 Kempe \. 279 Windle v. 81 Angerstein, Tidswell v. 161 Angier v. Stannard, 269 Annandale, Brown v. 216 Annesley, Macleod v. 258 Anon. 48, 144, 172 Anstruther, Ouseley v. 183 Antrobus, Cuningham v. 349 V. Smith, 34 Appleby, Pickering v. 186 Arbouin, Pritchard v. 321 Archer v. Gardiner, 348 V. Kelly, 271 V. Marsh, 86 Armistead, De Begnis v. 84 Armory v. Delamirie, 24, 25 Armstrong, Tullett v. 356 Arnold, Rawsthorn v. 175 Ashburner, Fletcher v. 262 Warden v. 241 V. McGuire, 317 Ashby V. Ashby, 350 Lloyd v. 290 Vere v. 290 Ashford, Davies v. 263 Ashley v. Ashley, 160 Ashton V. Lord Langdale, 320, 321 Askew, Carey v. 296 Newton v. 273 Aspinall v. Pickford, 29 Aston, Harvey v. 341 Atcheson, Scarpellini v. 347 Atherton, Lackington v. 41 Atkinson v. Bell, 37 V. Denby, 116 Atkyns v. Kinnier, 67, 86 Attenborough, Morley v. 369 Attorney-General v. Bouwens, 309 V. Davies, 321 V. Davison, 172 V. Graves, 320 T. Hertford, Marquis of, 315 V. Hope, 309 V. Malkin, 244 V. Meyrick, 320 V. Tyndall, 321 Drake v. 310 Glubb V. 321 March v. 320 Attwater V. Attwater, 317 Attwood v. Munnings, 368 Aubert v. Maze, 84 Aubin V. Daley, 181 Auldjo, Wallace v. 349 Avery v. Langford, 86 Scott V. 166 Axtell, Young v. 288 F Ixxxii INDEX TO ENGLISH CASES CITED. Ayton V. Ayton, 323 B. Badcock, Saddlers' Company v. 162 Badger, In re, 174: V. Shaw, 47 Bagley v. Mollard, 322 Bagwell V. Dry, 323, 324 Law V. 274 Bailey v. Macaulay, 292 Snellgrove v. 300 Bain v. Lescher, 323 Bainbridge, Hedley v. 291 Bainbrigge v. Blair, 267 Baine, AVilling v. 277 Bainton v. Ward, 246 Baker v. Bayldon, 349- V. Bradley, 357 V. Henderson, 30 Heslop V. 51 Leonard v. 152 Lyon V. 268 Mosley v. 212 Baleh v. Syines, 30 Baldey v. Parker, 39 Baldry, Norman v. 313 Baldwin, Ex parte Foss, Re, 23S Lloyd V. 264 Balfour v. Ernest, 292 V. Welland, 264 Balguy, Broadhurst v. 268 Ball, Caldwell v. 59 Bamfield v. Tupper, 78 Bamford, Brown v. 357 Bank of England, Churchill v. 189 Franklin v. 190 Richardson v. 195 V. Lunn, 188, 190 T. Moffatt, 190 V. Parsons, 190 Banks, Bell v. Ill Banner v. Lowe, 242 Bannister, Haley v. 255 Moodie v. 372 Banwen Iron Company v. Barnett, 197 Barber v. Barber, 323 V. Fox, 192 Buckley v. 279 Knight V. 186, 209 Mills V. 79 Barchard, Savill v. 29 Barclay, Ex parte, 14 V. Wainewright, 240 Bardell, Rex v. 168 Barham, Moor t. 334 Power V. 369 Baring v. Day, 28 Barker v. Lea, 348 V. Stead, 292 Price V. 285 Stamper v. 358 Barlow, Errat v. 265 Barnard, Earl of Glengall v. 319 Lyde v. 79, 378 Barnes, Skey v. 254 Barnett, Brandao v. 29 Banwen Iron Company v. 197 Barnett, Van v. 263 Barrack v. McCulloch, 272 Barrett v. Parry, 171 Barrie, Glover v. 173 Barrow, Lysons v. 307 Barr's Trusts, In re, 377 Barry v. Neshara, 290 Bartholomew, Drybutter v. 192 Bartlett v. Bartlett, 377 V. Gillard, 319 Ex parte, 359 'Barton v. Barton, 340 V. Briscoe, 356 Beckton v. 319 Barton's Will, In re, 344 Bartrop, Eyre v. 110 Barwis, Ex parte, 138 Basseit, Way v. 286 Bastard, Nicholls v. 26 Bate, Hunt v. 69 Bateman v. Davis, 261 • V. Ross, 358 Bates V. Cooke, 165 Foster V. 329 Bath, Exparte, 125 Bayldon, Baker v. 349 Baylis, Chowne v. 44 Beale v. Beale, 250 Bear v. Bromley. 196 Beard, Boulton v. 269 V. Egerton, 218, 220 Beaufort, Duke of, Wellesley v. 359 Beaumont v. Reeve, 72 Beavan v. Earl of Oxford, 188 Beck, Newton v. 11 Ward V. 54 Beckett, Donaldson v. 224 Beckford, Greening v. 378 Beckham v. Drake, 286, 289 Beckton v. Barton, 319 Beer v. Beer, 241 Bell, Atkinson v. 37 Bowlby V. 209 Hamilton v. 50 Hobson v. 379 Meux V. 378 Sanderson v. 28 V. Banks, 111 T. Bidgood, 93, 98 Bellaris, Brown v. 273 Bellassis v. Ermine, 341 Belton V. Hodges, 126 Bendict, Montague v. 35S Seaton v. 353 Bennett v. Burton, 153 V. Daniel, 93 Ex parte, 316 Page V. 162 Benning, Sweet v. 226 Bensley t. Bignold, 84 Benson v. Maude, 313 Bentall v. Burn, 39 Bentley v. Mackay, 273 Benyon v. Maddison, 243 Berchtoldt, Countess of, Earl of Lonsdale t, 243 Bern, Hardy v. 104 Bernard, Coggs v. 26 INDEX TO ENGLISH CASES CITED. Ixxxiii Bernes, Stnnley v. 298 Bertiey, West v. 251 Berrimaa v. Peacock, 18 Berrington v. Evans, 99, 272 Betts V. Burch, 67 V. Kimpton, 347 Bevan, Ex parte, 287 V. AValters, 28 Bewit, Whitfield v. 18 Bewley, Hancock v. 281 Bidden v. Leader, 85 Biddlecomb v. Band, 149 Bidgood, Bell v. 93, 98 Biffin V. Yoike, 94 Bignold, Bensley v. 84 Bill V. Cureton, 273 Billingsley, Lady Shore v. 277 Binks, Harland v. 274 Binnington v. Wallis, 70, 85 Binns, Swallow v. 264 Birch, AVatson v. 371 Bird V. Boulter, 40 V. Brown, 41 V. Gammon, 78 V. Ralph, 65 Morley v. 277, 323 Bishop V. Elliott, 15 Bishopp V. Colebrook, 352 Bissett V. Burgess, 65 Bittleston, Quartermaine v. 51 Bittlestone, Fenn v. 46 Black, Willis v. 271 Blackburn, Hobson v. 321 Blackburne, Strode v. 12 Blacklow V. Laws, 355 Blades v. Higgs, 21 Blair, Bainbridge v. 267 V. Bromley, 290 V. Nugent, 371 Blake, Dundas v. 375 Ex parte, 271 V. White, 110 Blakelock, Stevenson v. 29 Bland, Ex parte, 126 Blantern, Collins v. 84 Bligh V. Brent, 279 Blight, Loveacres d. Mudge v. 281 Blissett V. Cranwell. 281 Blofield, Abbott V. 345 Bloomer v. Darkes, 122 Blount V. Burrow, 301 Bloxham v. Sanders, 41, 43 V. Elsee, 220 Blunden v. Desart, 30 Blurton, Kirk v. 290 Blythe v. GTranville, 271 Bodly V. Reynolds, 43 Bogue V. lloulston, 229 Boldero, (Jodsall v. 160 Lushington v. 18 Bolland, Amicable Assurance Society v. V. Disnev, 160 Bollett, Burnby v". 369 Bond, Biddlecombe v. 149 Smith V. 103 Boosey v. Jeffreys, 224, 227 Booth v. Booth, 268 Kirkman v. 289 160 Booth, Martindale v. 46 Whale V. 312 Boothby, Morley v. 75 Borman, Scarborough v. 356 Boss V. Godsall, 262 Bot field, Bradburne v. 278 Boucher, Prescott v. 347 Boughton, Knight v. 241 Lord St. John v. 371 Boulter, Bird v. 40 Boulton V. Beard, 269 V. Bull, 218 Bourne, Dowbiggin v. 109 Hawken v. 291 Boutts V. Ellis, 300 Bouwens, Attorney-General v. 309 Bowden, Jones v. 369 Bower v. Marris, 115 Mexborough v. 165 BoT^eren, Grymes v. 14 Bowes, Countess of Strathmore v. 354 Bowker, Wilmhurst v. 43 Bowlby V. Bell, 209 Bewles's C^ise, 18 Bowman, Mullen v. 324 Bowser v. Cox, 110 Bowsher, Davis v. 29 Boyd, Robins v. 138 Boydell v. McMicha*!, 16 Boyle V. Bishop of Peterborough, 249 Ex parte, 144 Bracebridge v. Cook, 344 Bradburne v. Botfield, 278 Bradley, Baker v. 357 Hampshire v. 269 Perkins v. 44 Wren v. 358 V. Copley, 24, 46 Bradsey v. Clyston, 171 Bradshaw, Custance v. 279 Yeoman v. 105 Bradyl, Burridge v. 318 Braithwaite v. Britain, 286 V. Skinner, 6 Bramah v. Roberts, 291 Brandao v. Barnett, 29 Brander v. Brander, 240 Brandon v. Robinson, 356 Brathwait, Lampleigh v. 69 Breary, Roundel] v. 272 Bremridge, Evans v. 256, 285 Brent, Bligh v. 279 Brereton, Drosier v. 258 Brett v. Greenwell, 348 Brewin v. Short, 141 Briant, Philpot v. Ill Brice v. Stokes, 268 Bridge v. Bridge, 273 V. Cage, 86 V. Yates, 277 Bridges, Etty v. 379 V. Hawksworth, 25 Brierley v. Kendall, 46 Briggs V. Chamberlain, 353 Bright v. Ilutton, 293 Jones V. 369 Bright's Tf usts, 377 Briscoe, Barton v. 356 Ixxxiv INDEX TO ENGLISH CASES CITED. Briscoe, Ilanchett v. 352 Brise, Matthews v. 258 Bristead v. Wilkins, 189 Bristol and Exeter Railway Company, Coombes v. 39 Bristowe v. Ward, 250 Britain, Braithwaite v. 286 British Empire Shipping Company v. Somes, 28 Broadhurst v. Balguy, 268 Brocklebank, Stocker v. 290 Bromage v. Lloyd, 81 Bromhead, Wilkins v. 37 Bromley, Bear v. 196 Blair v. 290 Brooke v. Enderby, 288 T. Mitchell, 24, 170, 171 Brookes, Ex parte, 128 Brooks V. Keith, 271 Broom v. Broom, 279 Broughton t. Broughton, 268 Brown v. Allen, 317 V. Amyott, 241 V. Annandale, 216 T. Bamford, 357 T. Bellaris, 273 T. Edgington, 370 V. Lee, 110 T. Poeock, 356 T. Vawser, 179 V. Weatherby, 286 Bird V. 41 Collins Co. V. 234 Pflegar v. 114, 116 Jennings v. 70 Metropolitan Counties, Ac. Society V. 14 Richardson v. 369 Wakefield v. 278 Browne v. Cavendish, 274 V. Savage, 378 Brownlow, Nixon v. 194 Brownrigg, Bryson v. 301 Brownsmith, Wilson v. 318 Brumridge v. Brumridge, 269 Bruning, Smith v. 341 Bryan v. Child, 96 T. Clay, 65 Hemsworth v. 170 Bryans v. Nix, 35 Bryant, Hollis v. 150 Laythoarp v. 77 Bryce, Cannan v. 82, 88 Bryson v. Brownrigg, 301 Buchanan, Fleming v. 246 Buck, Sutton V. 26 Buckhursfs Case, 10 Buckingham, Earl of, v. Drury, 343 Buckland v. Johnson, 43 Buckley v. Barber, 279 Earl of Stafford v. 181 Ex parte, 290 Buckley's Trust, 270 Bull, Boulton V. 218 V. Faulkner, 30 Bunn V. Markham, 301 Burch, Betts v. 67 Burdiss, Carr v. 35 * Burford, Dix v. 268 Burge, Heyhoe v. 290 Burgess, Bissett v. 65 Tappenden v. 117 Williams v. 96 Burghart, Lane v. 76 Burke v. Jones, 375 Burley, Gilly v. 240 Burn, Bentall v. 39 V. Burn, 291 Burnby v. Bollett, 369 Burnell, Gale v. 32, 46 Burnet v. Mann, 333 Buri-idge v. Brady], 318 Burrough v. Moss, 345 Burrow, Blount v. 301 Burrowes, Stuart v. 306 Burton, Bennett v. 153 Goode V. 11 V. Hughes, 27 Bury, Petrie v. 276 Busii, Hart v. 39 V. Shipman, 116 Bushell V. Wheeler, 38 Busk V. Davis, 37 Pickering v. 368 Butcher v. Butcher, 271 V. Jackson, 252 Butler, Falkner v. 250 Butterfield, In re, 289 Byers, Wilkinson v. 114 Byng V. Lord Strafford, 242 Byrne, Ward v. 86 Byron v. Byron, 73 Bywater, Wrightson v. 173 Cadogan v. Earl of Essex, 262 Cage, Bridge v. 86 Caldwell v. Ball, 69 Calvert v. London Dock Company, 110 Camm, Goulder v. 357 Campbell v. Campbell, 268 V. Home, 251 Macarthur v. 175 Campion v. Cotton, 70 Candish, Wilkinson v. 125 Cannan v. Bryce, 84, 88 Cannings v. Flower, 255 Careless, Raehfield v. 324 Carew, Clive v. 356 Carey v. Askew, 296 Collins V. 267 Cargey v. Aitcheson, 173 Aitcheson v. 173 Carlisle. Earl of Leehmere v. 263 Carpenter v. Smith, 216 Tebbs V. 183 Carr, AUatt v. 33 V. Burdiss, 35 Carrick, Freshney v. 46 Carrington, Ex parte, 125 Carruthers, Parkin v. 288 Carstairs, Ex parte. 111 Maltby v. Ill Carter r. Crick, 369 V. Taggart, 241, 349 INDEX TO ENGLISH CASES CITED. Ixxxv Carter v. Whalley, 288 Cartwright v. Cartwright, 357 V. Vawdry, 322 Carver, Waugh v. 289, 291 Case, Hartley v. 82 South Carolina Bank v. 291 Cassell, In re, 177 V. Stiff 232 Castle V. Sworder, 39 Castrique, Ilderton v. 122 Caulfield v. Maguire, 109 Cautley, Foster v. 248 Cave V. Cave, 16 V. Roberts, 336 Farquharson v. 301 Cavendish, Browne v. 274 Chadwick v. Doleman, 250 Chaloner, Horsley v. 315 Chamberlain, Briggs v. 353 V. Williamson, 63 Chambers, Willett v. 290 Champernown v. Scott, 30 Champneys, Sturgis v. 348 Chandler, Kensington v. 273 • Channon v. Patch, 18 Chanter v. Hopkins, 369 Chaplin, Ex parte, 258 V. Rogers, 34 Chapman, Howse v. 220 May V. 82 Nicholson v. 28 V. Milvain, 196 Charlesworth, Malcomb v. 349 Chase, Goodman v. 75 Cherry v. Hemming, 76 Cheslyn v. Dalby, 78 Cheyne, Eccles v. 324 Chichester, Smith v. 30 Chidell V. Galsworthy, 33 Chilcote V. Kemp, 122 Child, Bryan v. 96 V. Morley, 185 Chiswell, Gray v. 286 Chitty, Hulme v. 358 Chollett V. Hoffman, 224 Cholmeley v. Paxton, 18 Chowne, Baylis v. 44 Churchill v. Bank of England, 189 V. Small, 12 Churchward v. Studdy, 21 City of London Steam Packet Company, Fen- ton V. 58 Clancy v. Piggott, 75 Clare, Ridgway v. 286 Claridge, Hollis v. 30 Clarke v. Lord Abingdon, 103 V. Parker, 341 V. Seton, 103 V. Shee, 365 Groves v. 349 In re, 290 Rawlinson v. 290 Smith V. 81 Clarkson, Wild v. 103 Clay, Bryan v. 65 Clayton v. Kyna.ston, 282, 284, 285 Cleave v. Jones, 78 Clegg v. Clegg, 271 Clift V. Schwabe, 160 Clive, Carew v. 356 Close V. Close, 111 V. Waterhouse, 29 Clough V. French, 101 V. Lambert, 358 Clulow, In re, 241 Clyston, Bradsey v. 171 Cobb, Rishton v. 340 Cock, Lashbrook v. 281 Cockburn, Daubney v. 251 Cocksedge v. Cocksedge, 357 Coggs V. Bernard, 26 Coker, Hitchcock v. 86 Colbeck, In re, 389 Cole, Kearsley v. 285 Kerrison v. 85 Colebrook, Bishopp v. 352 Colegrave v. Bias Santos, 14 Collectors of Customs, Rex v. 279 Collett, Meryon v. 244 V. Morrison, 161 Collins V. Blantern, 84 V. Carey, 267 V. Collins, 177 V. Martin, 82 Drew V. 122 Hobby V. 353 Lowndes v. 108 Company v. Brown, 234 Collinson, Holderness v. 29 Colne Valley and Halstead Railway, In re, 261 Colvin, Wilton v. 271 Combe, Ward v. 240 Compton, Peter v. 76 Right d. Compton v. 341 Conduitt V. Soane, 238 Congreve, Douglas v. 271 V. Evetts, 33 Cook, Bracebridge v. 344 V. Wright, 70 Cooke, Bates v. 165 V. Fuller, 360 V. Whorwood, 173 Cookson V. Cookson, 279 V. Reay, 263 Coombs V. Bristol and Exeter Railway Com- pany, 39 Coope V. Twyman, 110 Cooper, Davidson v. 83 Edwards v. 272 Loveridge v. 377, 378 Rust V. 144 v. Johnston, 170 V. Shepherd, 43 V. Willomatt, 27 V. Woolfit, 17 Cope V. Rowlands, 84 Copeland, Morton v. 226 Copis V. Middleton, 109 Copley, Bradley v. 24, 46 Coppin, Dillon v. 34, 70 Corbet, Ewer v. 312 Corbitt, White v. 138 Cordell, Elliott v. 350 Corles, Dipple v. 69 Cornforth v. Smithard, 72 Cornthwaite, Frith v. 274 Ixxxvi INDEX TO ENGLISH CASES CITED. Cornwallis, Las?ells v. 246 Corporation of Liverpool, Scott v. 166 Cotton, Campion v. 70 Coventry v. Coventry, 266 Lord, Lygon v. 257 Cowell V. Simpson, 29, 31 Cowper, Hutton v. 98 Cox, Bowser v. 1 10 Coxeter, Anderson v. 175 Craddock, Lake v. 279 Cradock v. Piper, 268 Craig, Downes v. 65 Crallan v. Oulton, 375 Cramer v. Moore, 271, 281 Cranefeld, Freake v. 374, 375 Cranley v. Hillary, 116 Cranmer's Case, 319 CranvFell, Biissett v. 281 Craythorne v. Swineburn, 110 Creed v. Perry, 352 Cresswell, Green v. 75 Creswick v. AVoodhead, 303 Crick, Carter v. 369 Cristall, Ferguson v. 24, 27 Crofts, Elves v. 86 Crofton v. Poole, 147 Crompe, Martin v. 279 Crosby v. Crouch, 144 Crossfield v. Stanley, 98 Crosskey, European, Ac. Shipping Co. v. 177 Crossley v. Dobson, 283 Crouch, Crosby v. 144 Croydon Canal Co., Hodges v. 372 Cruger v. Dunlop, 122 Cruise v. Hunter, 359 Cubitt, Stansfeld v. 47 Cullingworth v. Lloyd, 116 Cumber v. Wane, 114 Cunningham v. Antrobus, 349 Cunynghame v. Thurlow, 252 Cureton, Bill v. 273 Curling v. Flight, 380 Curry, Wilmer v. 283 Cusack V. Robinson, 38 Custance v. Bradshaw, 279 Cutbush V. Cutbush, 289 Cuthbert v. Dobbin, 94 Cutler, In re, 348 Cutten V. Sanger, 273 D. Dabbs, Ford v. 151 Dalby, Che.=lyn v. 78 V. India and London Life Assurance Company, 161 Dale, Drayton v. 147 Dalton, In re, 342 Daly, Aubin v. 181 Dalzell, Lynch v. 162 Daniel, Bennett v. 93 Kirwan v. 274 V. Dudley, 244 Darby v. Darby," 2 79 Darell, Hales v. 319 Sturgis V. 374 Darkes, Bloomer v. 122 Dartmouth, Lord Howe v, 183 Darton, Moore v. 300 Daubeny v. Cockburn, 251 Davenport, Elliot v. 243, 323 Ex parte, 35 Davids, Jones v. 109 Davidson v. Cooper, 83 Ex parte, 227 Davies v. Ashford, 263 V. Humphreys, 110 v. Penton, 67 V. Stainbank, 110 V. Vernon, 10, 12, 29 Attorney-General v. 321 Davis, Bateman v. 261 Busk V. 37 Godfrey v. 322 Shepley v. 37 V. Bowsher, 29 V. Earl of Dysart, 12 V. Johnston, 53 V. Mason, 86 Davison, Attorney- General v. 172 Dawes v. Peck, 39, 42 Dawson v. Kearton, 71 Pearson v. 35, 39 • Day, Baring v. 28 Hulkes V. 188 AVallis V. 86 Deakle, Pain v. 171 Dean v. Hogg, 68 Dearie v. Hall, 377, 378 De Begnis v. Armistead, 84 De Castro, Willis v. 285 Dedire, Freemoult v. 272 Deeks v. Strutt, 6 Deering v. Earl of Winchelsea, 109 Delamirie, Armory v. 24, 25 De la Grouee, Hambidge v. 291 De la Garde v. Lempriere, 349 De Mattos, De Pothonier v. 112 De Mautort v. Saunders, 286 Denby, Atkinson v. 116 Denny, Flory v. 36 De Pass, Lyons v. 366 De Pothonier v. De Mattos, 112 De Proven, Dupleix v. 99 Desanges, Thomas f. 141 Desbrisay, Fearon v. 252 Desart, Blundeu v. 30 Detastet, Ex parte, 287 Devaynes V. Noble, 115, 286 Devereux v. Kilkenny, &c. Railway Co., 193 Dewdney, Ex parte, 374 Dewhurst v. Kershaw, 122 Dias Santos, Colegrave v. 14 Dickie, Gibson v. 70 Dickinson v. Kitchen, 56 V. Teesdale, 375 V. Valpy, 291 Orr V. 57 Diggs, Andrews v. 93 Dillon V. Coppin, 34, 70 Dimsdale v. Robertson, 171 Dipple V. Corles, 69 Disney, Bolland v. 160 Dix V. Burford, 268 Dixie, Wood v. 49 Dixon, Fisher v. 15 INDEX TO ENGLISH CASES CITED. Ixxxvii Dixon V. Yates, 35, 41 , 42 Dobbin, Cutbbert v. 94 Dobree, Ruddell v. 301 Dobson, Crossley v. 283 Dodd, Lewen v. 281 Olddeld V. 131 Doe d. Esdaile v. Mitchell, 141 d. Morrison v. Glover, 212 d. Stace v. Wheeler, 303 Doleman, Chadwicli v. 250 Dolland, Kensington v. 355 Dominy, Thompson v. 59 Donaldson v. Becket, 224 V. Donaldson, 273 Doncaster v. Doncaster, 242 Donellan v. Reid, 76 Deran v. Wiltshire, 264 Dorien, Lucas v. 35 Dorrill, Routledge v. 251, 252 Douglass V. Congreve, 271 V. Russell, 59 Dover v. Alexander, 322 Dowbiggen v. Bourne, 109 Dowling, Wade v. 173 Downes, Ex parte, 139 V. Craig, 65 Downman, Motley v. 235 Downs, England v. 354 Dowson, Pickering v. 369 Drake v. Attorney-General, 310 Beckham v. 286, 289 Drayton v. Dale, 147 Drew V. Collins, 122 Driver v. Mawdesley, 274 V. Scott, 269 ©rosier v. Brereton, 258 Drummond, Evans v. 288 McCleod V. 312 V. Parish, 296 Drury, Earl of Buckingham v. 343 V. Scott, 271 Dry, Bagwell v. 323, 324 Drybutter v. Bartholomew, 192 Dubost, Ex parte, 34 Morrell, v. 93 Dudley, Daniel v. 244 V. Warde, 15 Dufaur, Ex parte, 125 Duff V. East India Company, 290 Gordon v. 317 Duffield V. Elwes, 300 DufiFy's Trust, In re, 350 Duke, Samuel v. 366 Sheppard v. 371 Duncan v. Topham, 77 Dundas v. Blake, 375 V. Dutens, 188 Dungannon, Lord Ker v. 238 Dunkley v. Dunkley, 348 Dunlop, Cruger v. 122 V. Higgins, 77 Dunnieliffv. Mallet, 281 Duplex V. De Proven, 99 Durant, James v. 271 V. Prestwood, 333 Durnford v. Lane, 342 Dutens, Dundas v. 188 Dutton v. Morrison, 117 Dyke v. Walford, 327 Dykes, Tolson v. 155 Dysart, Earl of, Davis v. 12 E. Eads v. Williams, 173 Eardly V. Owen, 371 Earle, Heinekey v. 42 Mare v. 116 East India Co., Duflf v. 290 Murray v. 374 Venables v. 304 Eastwood V. Kenyon, 69, 72 Eccles v. Cheyne, 324 Ede, Mitchell v. 35 Edelston v. Vick, 235 Edgeberry v. Stevens, 218 Edgington, Brown v. 370 Edmonds, Goodtitle d. Richards v. 243 V. Low, 318 Edsun, Smarte v. 283 Edwards v. Cooper, 272 V. Freeman, 330 V. Hall, 320 V. Harben, 45 V. Janes, 76 V. Jones, 34, 273, 301 V. Searsbrook, 97 V. Countess of Warwick, 242 Egerton, Beard v. 218, 220 Elibank, Lady v. Montolieu, 348 Lord, Murray v. 348, 349 Elliott, Bishop v. 15 • v. Cordell, 350 v. Davenport, 243, 323 V. Merriman, 312 Ellis, Boutts V. 300 v. Nimmo, 70 Ellison V. Ellison, 34, 273 V. Elwin, 342, 350 Lyddon v. 250 Elsee, Bloxham v. 220 Elton, Ex parte, 286 Elves V. Crofts, 86 Elvey V. Norwood, 373 Elwes, Duffield v. 300 Forrest v. 183, 269 V. Maw, 14 Elwin, Ellison v. 342, 350 Enderby, Brooke v. 288 England v. Downes, 354 Equitable Reversionary Interest Society v. Fuller, 260 Ermine, Bellasis v. 341 Ernest, Balfour v. 292 Errat v. Barlow, 255 Erskine's Trust, 348 Espinasse, Petre v. 273 Essex, Earl of Cadogan v. 262 Ettricke v. Ettrieke, 281 Etty V. Bridges, 379 European Co. v. Royal Mail Co., 56 European, Ac, Shipping Co. v. Crosskey, 177 Evans, Berrington v. 99, 272 Field V. 357 Legg V. 24, 30, 46 Shaw V. 93 Ixxxviii INDEX TO ENGLISH CASES CITED. Evans v. Bremridge, 285 T. Drummond, 288 V. Scott, 254 Williams v. 14 Everard v. Poppleton, 95 Everett, Eyre v. 11 J Evetts, Congreve v. 33 Ewer V. Corbett, 312 Eyre v. Bartrop, 110 V. Everett, 111 Holland v. 77 Eyres v. Faulkland, 238 Eyton, Pott v. 290 F. Falkner v. Butler, 250 Farebrother v. Simmons, 40 Farina v. Home, 39 Farmer V. Smith, 212 Sparrow v. 212 Farnell, Kiddill v. 368 Farquhar, McQueen v. 251 Farquharson v. Cave, 301 Farr, Meredith v. 322 Farrant v. Thompson, 16 Farren, Kenible v. 07 Farrow v. Mayes, 96 Faulder, Harper v. 12 Faulkland, Eyres v. 238 Faulkner, Bull v. 30 Fearnhead, Knatchbull v. 313 Fearon v. Desbrisay, 252 Fenn v. Bittlestone, 46 Fenton v. City of London Steam Packet Com- pany, 58 Fenton, Trueman v. 72 Fenwick v. Greenwell, 269 Ferguson v. Cristall, 24, 27 Sainter v. 67 Fergusson v. Norman, 84 Fernie, Hodgkinson v. 174 Fesenmeyer, Johnson v. 126 Festing v. Allen, 244 Fetherston v. Hutchinson, 85 Fettiplace v. Gorges, 354 Fidgeon, Laing v. 370 Field V. Evans, 357 Northey v. 42 Yea V. 1 Fielder, Proudley v. 355 Finney, Foden v. 348 Firmin v. Pulham, 268 Fisher v. Dixon, 15 T. Pimbley, 173 Fitch V. Sutton, 114 Fitzer v. Fitzer, 358 Fleming v. Buchanan, 246 V. Self, 212 Fletcher v. Ashhurner, 262 V. Fletcher, 359 Leehmere v. 78 Flight, Curling v. 380 Flintoff, Horner v. 67 Flory V. Denny, 36 Flower, Cannings v. 255 Foden v. Finney, 348 Foley V. Addenbrooke, 278 Foley, Paget v. 373 Foljambe, Ogilvie v. 76 V. Willoughby, 257 Fooks, Pride v. 183, 269 Foote, Woods v. 122 Ford V. Dabbs, 151 v. Jones, 177 V. Peering, 12 Fordham v. Wallis, 78 Fordwich (Mayor of), Tomlin v. 173 Fores v. Johnes, 86 Forrest v. Elwes, 183, 269 Foss, Ex parte. Re Baldwin, 233 Foster v. Bates, 329 V. Cautley, 248 V. Pearson, 365 V. Weston, 108 Fourdrin v. Gowdey, 318, 319 Fowler v. Fowler, 318 Marshall v. 348 Fox, Barber v. 102 Freakley v. 303 Webb V. 147 V. Smith, 173 Francis v. Grover, 372 V. Hawkesley, 72 Viner v. 323 Franklin v. Bank of England, 190 V. Hosier, 28 V. Neate, 26 Franks, Ex parte, 125 Fraser, Mather v. 14, 47 V. Palmer, 267 V. Thompson, 70 Freake v. Cranefeldt, 374, 375 Freakley v. Fox, 303 Frecker, Norton v. 374 Freeman, Ex parte, 287 Edwards v. 330 Freemoult v, Dedire, 272 French, Clough v. 101 Ex parte, 259 Frere, Thomason v. 280 Freshney v. Carrick, 46 Friar, Grey v. 104 Frith V. Corntbwaite, 274 Frost, Williams v. 215 Frowd, Moore v. 267 Fry, Ex parte, 287 Fryatt, Reid v. 171 Fuller, Cooke v. 360 Equitable Reversionary Interest So- ciety V. 260 Furber, Graham v. 141 Furniss v. Leicester, 369 G. GafFee, In re, 356 Gale V. Burnell, 32, 46 V. Walsh, 81 Griffiths V. 324 Galsworthy, Chidell v. 33 V. Strutt, 67 Gambart v. Sumner, 229 Gammon, Bird v. 78 Gardiner, Archer v. 348 Gardner v. Marshall, 348 INDEX TO ENGLISH CASES CITED. Ixxxix Gardom, Ex parte, 290 Garland, Ex parte, 289 Garner v. Hannyngton, 12 Garnett, Pierson v. 250 Garrard v. Lord Lauderdale, 274 Gaskell v. King, S5 Gaters v. Madeley, 347 Gatty, Phillipson v. 258 Gaylor, Howell v. 244 Gaze, Love v. 325 Gee V. Gurney, 252 Geldard, Robinson v. 322 Gent V. Harris, 348 Gery, Humfrey v. 372, 373 Gibbeson, Greenham v. 261 Gibbon, Kempe v. 372 Gibbons v. Northeastern Metropolitan Asy- lum District, 77 Gibbs, Lindsay v. 59 Gibson v. Dickie, 70 Gifford, Ex parte, 110, 285 Nugent V. 312 Gilbert v. Lewis, 355 Richardson v. 226 Giles, Walker v. 212 Gilkes V. Leonine, 77 Gill, In the Goods of, 328 V. Shelley, 322 Gillard, Bartlett v. 319 Gilly V. Burley, 240 Giraud, Hilton v. 320 Girdlestone, Watts v. 183, 269 Gleaves v. Paine, 348 Glendinning, Ex parte, 116 Glengall, Earl of, v. Barnard, 319 Gloucester, Corporation of, Trye v. 321 Glover v. Barrie, 173 Morrison v. 211, 212 Glubb V. Attorney-General, 321 Glyn V. Thorpe, ioO Glynn, Morris v. 320 Goddard, Pedley v. 175 V. Snow, 354 Godden, Ex parte, 122 Godfrey v. Davis, 322 V. Turnbull, 288 Godsall V. Boldero, 160 Boss V. 262 Goldsmid v. Goldsmid, 251 Gomley v. Wood, 267 Gomme, Hill v. 313 Good v. Burton, 11 Goodman v. Chase, 75 V. Harvey, 365 Goodtitle d. Richards v. Edmonds, 243 Gordon v. Dutf, 317 V. Gordon, 322 V. Harper, 24, 27 Norcott V. 318 Gorges, Fettiplace v. 354 Gould, Weldon v. 23 Goulder v. Camm, 357 Gouthwaite, Ex parte, 128 Gowdey, Foudrin v. 318, 319 Grace v. Smith, 289 Webb V. 341 Grafftey v. Hurapage, 244, 271 Graham v. Furber, 141 Graham v. Graham, 318 V. Londonderry, 345 Grane, White v. 257 Grant v. Grant, 103 V. Vaughan, 365 Routledge v. 77 Grantham v. Hawley, 32 Granville, Blythe v. 271 Graves, Attorney General v. 320 v. Weld, 17 Gray v. Chiswell, 286 V. Limerick, Earl of, 250 v. Mathias, 85 Hind v. 86 Irving V. 122 Great Northern Railway Co., Pym v. 62 Great Western Railway Co., Rouch v. 141 Greaves v. Hepke, 35 Shuttleworth v. 317 Steward v. 196 Greedy v. Lavender, 351 Green v. Cresswell, 75 V. Price, 85, 87 Hardy v. 271 In re, 314 Price V. 67 Greenham v. Gibbeson, 261 Greenhill, Rex v. 359 Greening v. Beckford, 378 Green's Patent, 224 Greenwell, Brett v. 348 Fenwick v. 269 V. Greenwell, 255 Greenwood's Case, 198 Greese, Richardson v. 319 Gresham, Wiles v. 261 Gregory, Heckscher v. 185 Grey v. Friar, 104 V. Stuart, 271 GrifBn, Bishop of Hereford v. 226 Lee V. 40 Thompson v. 256 Griffith V. Ricketts, 262, 274 Griffiths V. Gale, 324 Grimes v. Harrison, 212 Grove v. Afialo, 40 Grover, Francis v. 372 Whittingstall v. 286 Groves v. Clarke, 349 V. Perkins, 349 Grymes v. Boweren, 14 Stratton v. 341 Guedalla, Montefiore v. 319 Gunn, Powle v. 69, 186 Gurney, Gee v. 252 Guthrie, Ilewison v. 31 Leslie v. 59 Gutteridge, Simmons v. 303 Guy, Styles v. 268 H. Haddan, Mason v. 166 Hadfield, Rashforth v. 29 JIaigh, Howdon V. 116 Hale V. Saloon Omnibus Company, 49 Hales V. Darell, 319 Halesham v. Young, 290 xc INDEX TO ENGLISH CASES CITED. Haley v. Bannister, 255 Halford v. Kymer, 161 Hall, Dearie V. 377, 378 Edwards v. 320 Heath v. 1 1 1 Moss V. 110 Pinkney v. 290 Reynolds v. 50 Stanton v 350 V. Hardy, 178 V. Hewer, 250 V. Hugonin, 352 V. Lawrence, 177 V. Norfolk Estuary Company, 193 V. Palmer, 85 V. Potter, 341 Hallewell, Hawker v. 87 Halliday, Streatfield v. 284 Halthin, Steinmitz v. 349 Hambidge v. De La Crouee, 291 Hames v. Hames, 244 Hamilton v. Bell, 50 V. Kirwan, 251 Hammond v. Hammond, 271 Hamper, Ex parte, 290 Hampshire v. Bradley, 269 Hanbury v. Kirkland. 268 Hanchett v. Briscoe, 352 Hancock v. Bewley, 281 V. Heywood, 280 Hanfortb, Howell v. 241 Hannyngton, Garner v. 12 Hanrott, Wombwell v. 248, 249 Hansen v. Keating, 348 V. Meyer, 37 Harben, Edwards v. 45 Harcourt v. Ramsbottom, 172 Hardey v. Green, 271 Hardy v. Bern, 104 Hall V. 178 Hare v. Horton, 14 Hyat V. 290 Harewood, Lord, Milner v. 342 Harford, Neilson v. 220 Harland v. Binks. 274 Harley v. Harley, 352 Harmer v. Westmacott. 233 Harnett v. Macdougall, 357 Harper v. Faukler, 12 Gordon v. 24, 27 Harrington v. Price. 10 Harris, Ex parte, 286 Gent V. 348 V. Llovd, 152, 322 V. AVall, 73 Harrison, Grimes v. 212 V. Jackson, 291 • V. Paynter, 113 Harrobin, Pole v. 84 Harrop v. Howard, 357 Hart V. Bush. 39 V. Stephens, 347 Hartford v. Jones, 28 Hartley v. Case, 82 Hartnoll, Cripps v. 75 Harvey v. Aston, 341 Goodman v. 365 Haslam, Nickels v. 220 Hasleham v. Young, 290 Hassell V. Hawkins, 319 Hastings, Lord, Scott v. 188 Hawken v. Bourne, 291 Hawker v. Hallewell, 87 Hawkes v. Ilollingsall, 153 Hawkesworth, Bridges v. 25 Wolverhampton New Water- works Company v. 193 Hawkins, Hassell v. 319 Hawley, In re, 177 Grantham v. 32 Haworth, Meyer v. 72 Hay, Ex parte, 287 V. Palmer, 241 Hayes v. Hayes, 317 Haygarth, Taylor v. 336 Hayley, Hope v. 33 Hayter v. Tucker, 320 Hayward, Williams v. 212 Head, March v. 348 Headington, Holloway v. 70 Heard v. Stamford, 353 Heath V. Hall, 111 V. Key, 110 V. Lewis, 341 Heather, Richards v. 283 Heavar, Manser v. 173 Heeht, Hunt v. 38 Heckscher V. Gregory, 185 Hedley v. Bainbridge, 291 Heinekey v. Earle, 42 Hellicar, Powell v. 301 Helme v. Smith, 53 Hembrow, Prior v. 170 Heming, Cherry v. 76 V. Swinnerton, 168 Hemsworth v. Bryan, 170 Henderson, Baker v. 30 Wilkinson v. 286 Heneage v. Hunloke, 250 Henning, Whittle v. 352 Henshaw, Williams v. 277 Hensloe's Case, 303 Hepke, Greaves v. 35 Hereford, Bishop of, v. Griffin, 226 Herlakenden's Case, 16, 18 Herniman, Acraman v. 96 Hertford, Marquis of, Attorney-General v. 315 Hesilridge, McDonnell v. 273 Heslop V. Baker, 51 Ex parte, 51 Hewer, Hall v. 250 Hewison v. Guthrie, 31 Hewitt V. Price, 209 Webb V. Ill Heyhoe v. Burge, 290 Heywood, Allwood v. 12 Hancock v. 280 Hibbert, Simond v. 29 Hickman, Wheatcroft v. 290 Hicks, Lovell v. 290 Higgins, Dunlop v. 77 V. Pitt, 116 V. Sargent, 108 Higgs, Blades v. 21 Hilbert, Tate v. 300, 301 Hill V. Gomme, 313 INDEX TO ENGLISH CASES CITED. XCI Hill, Johnson v. 28 Rex V. ]71 Warburton v. 189 V. Spencer, 85 V. Thompson, 218, 220 Hillary, Cranley v. 116 Hillman, Tapfield v. 32 Hills V. Hill, 301 Hilton V. Giraud, 320 Hinchcliffe v. HinchclifFe, 319 Hinchinbrook, Lord, Shipbrook v. 268 Hind V. Gray, 86 Hindley v. Westmeath, Marquis of, 357 Hinton v. Pincke, 317 Hirsch v. Im Thurn, 166 Hiscox, Willis v. 268, 269 Hitchcock V. Coker, 86 Hitchins v. Kilkenny, &c., Railway Co., 194 Hitchman v. Stewart, 109 V. Walton, 14, 16 Hoadley v. McLaine, 38 Hoare v. Hornby, 271 V. Parker, 238 Hobbs, Robins v. 122 Hobby V. Allen 353 V. Collins, 353 Hobson V. Bell, 379 Hobson V. Blackburn, 321 Hockley, Steadman v. 30 Hodge, Walter r. 300 Hodges, Belton v. 126 V. Croydon Canal Co., 372 Hodgkinson v. Fernie, 174 Hodgson V. Loy, 41 V. Shaw, 109 V. AVightman, 116 Nash V. 78, 115 Hodson V. Observer Life Assurance Co., 160 Wallis V. 334 Hoffman, Chollett v. 224 Hogg, Dean v. 58 Holden, Stokes v. 45 Holderness v. Collinson, 29 V. Rankin, 50 Holford V. Phipps, 269 Holland v. Eyre, 77 V. Hughes, 183 Hollier, Ravenshaw v. 274 Hollingsall, Ilawkes v. 153 Hollinshead, Reid v. 290 HoUis V. Bryant, 160 V. Claridge, 30 Holloway v. Headington, 70 Holmes v. Mackrell, 72 V. Tntton, 113 Holroyd v. Marshall, 33 Hoist V. Pownal, 42 Homan, Owen v. Ill Home, Campbell v. 251 Homewood, Leader v. 14 Honner v. Morten, 351 Hooper v. Ramsbottora, 12 V. Rossiter, 240 Hope, Attorney-General v. 309 V. Hayley, 33 V. Hope, 359 Hopkins, Chanter v. 369 ♦■■ Tugman v. 355 Hopkins v. Prescott, 86 V. Logan, 69 Hopkinson v. Lee, 278 Hornby, Hoare v. 271 Home, Farina v. 39 Horner v. Flintoff, 67 Hornsby v. Miller, 46 Horsley v. Chaloner, 315 Horton, Hare v. 14 Richardson v. 283 Wells V. 76 V. Sayers, 165 Hosier, Franklin v. 28 Hotham v. Somerville, 12 Houghton V. Houghton, 279 V. Matthews, 29 Houlston, Bogue v. 229 How, Jones v. 271 Pudding V. 235 Howard, Harrop v. 357 V. Rhodes, 268 Howarth, Samuel v. 110 Howden v. Heigh, 116 Howe V. Lord Dartmouth, 183 V. Synge, 85 Whitlaker v. 86 Howell V. Gaylor, 244 V. Hanforth, 241 V. Mclvers, 111 Howes, Morris v. 244 Howse V. Chapman, 320 Hughes, Burton v. 27 Holland v. 183 Oldham v. 263 Rann v. 68 Stoveld V. 34 V. Kelly, 373 V. Stubbs, 274 V. Wynne, 103, 375 Hugonin, Hall v. 352 Hulkes V. Day, 188 Hulme V. Chitty, 358 Humble v. Mitchell, 186, 209 Mclver V. 288 Humfrey v. Gery, 372, 373 Humpage, Grafftey v. 244, 271 Humphrey, Peer v. 366 Humphreys, Davies v. 110 Hunloke, Heneage v. 250 Hunt V. Bate, 69 V. Ilecht, 38 V. Peacock, 376 Knight V. 116 Hunter, Cruise v. 359 V. Nockolds, 373 V. Parker, 53 Huntley v. Russell, 65 Hurst V. Jennings, 104 Parnham v. 112 Smith V. 274 Husbands, Ex parte, 287 Hatchings v. Smith, 350 Hutchin.^on, Featherstone v. 85 Hutton, Bright v. 293 V. Cowper, 98 Hyat r. Hare, 290 V. Price, 108 XCll INDEX TO ENGLISH CASES CITED. Idle's Case, 19 Ilderton v. Castrique, 122 V. Jewell, 121 Im Thurn, Hirsch v. 1G6 Ince, Parker v. K^S India & London Life Assur. Co., Dalby v. 161 Inge V. Moseley, 85 Ingham, Siuison v. 115 Ingilby, Winn v. 16 Ingleback v. Nichols, 122 Inland Revenue, Comm'rs of, Sanville v. 275 Innes, Penny v. 82 Inns, Stal worth v. 172 Irish Land Co., Norris v. 60 Irons V. Smallpiece, 34 Irvine, Rannie v. 86 Irving V. Gray, 122 Mercer v. 67 Iveson, Other v. 283 Jackson, Butcher v. 262 Ex parte, 139 Harrison v. 291 Purdew v. 351 Thorpe v. 286 Wheelwright v. 144 V. Jackson, 251 V. Nichol, 42 V. Sinclair, 373 T. Thompson, 152 V. Woolly, 78, 285 Jacquet v. Jacquet, 375 Jacob, Worrall v. 358 James v. Durant, 271 V. Thomas, 103 Jamieson, In re, 177 Janes, Edwards v. 78 Janson, Ex parte, 286, 287 Jarvis, Smith v. 290 Jeffereys v. Small, 279 JeflFery v. Jeflfery, 70 JeflFeryes, Watts v. 188 JeflFerys, Boosey v. 224, 227 Jenkins, Perry v. 374 Richardson v. 101 V. Usborne, 42 Jenkyn v. Vaughan, 272 Jennings v. Brown, 72 Hurst v. 104 Rawlings v. 182 Jervis, Radburn v. 181 Jervoise v. Jervoise, 345 V. Silk, 257 Jessopp V. Watson, 333 Jewell, Ilderton v. 121 Johnes, Fores v. 86 Johnson, Buckland v. 43 Cooper V. 170 Raw.^on V. 41 Worrall v. 30 V. Fesenmeyer, 126 T. Hill, 28 V. Johnson, 324 Jones V. Bowden, 369 Jones V. Bright, 369 V. Davids, 190 V. How, 271 Burke v. 375 Cleave v. 78 Edwards v. 34, 273, 301 Ford V. 177 Hartford v. 28 Macoubrey v. 250 Reilly v. 67 Scott v. 375 Tyler V. 170 Waite V. 86, 358 Judson, Nicholls v. 319 K. Kain, Shepperd v. 369 Keane, Mornington v. 272 Kearsly v. Cole, 285 Morris v. 279 Kearton, Dawson v. 71 Keating, Hanson v. 348 Smith V. 274 Keelev, Winch v. 112 Keightly v. Watson, 278 Keith, ijrooks v. 271 Rees V. 349 Kekewich v. Manning, 273 Kelly, Archer v. 271 Hughes V. 373 Kemble v. Farren, 67 Kemp, Chilcote v. 122 Philanthropic Society v. 322 Kempe v. Andrews, 279 V. Gibbon, 372 Kendall, Brierley v. 46 Kennay, Rogers v. 24 Kennedy, Ex parte, 286 Molony v. 355 Kensington v. Chandler, 273 V. Dolland, 354 Ex parte, 286 Kenyon, Eastwood v. 69, 72 Ker V. Lord Dungannon, 238 Kerrison v. Cole, 85 Kershaw, Dewhurst v. 122 Kettlewell, Meek v. 70 Key, Heath v. 110 Kiddill V. Farnell, 368 Kidson v. Turner, 72 Kilkenny, &c., Railway Co., Devereux v. 193 Hitchins v. 194 Kimpton, Betts v. 347 Kincaid, In re, 348 King, Gaskell v. 85 V. Rendall, 122 Kingsford v Merry, 35, 366 Kingsley's Trust, In re, 360 Kinnersley v. Mussen, 95 Kinnier, Atkyns v. 67, 86 Kirby v. Potter, 317 Kirk v. Blurton, 290 Kirkland, Hanbury v. 268 Kirkman v. Booth, 289 Needham v. 271 K^rkpatrick v. Tattersall, 72 Kirwan v. Daniel, 274 INDEX TO ENGLISH CASES CITED. XCIU Kirwan, T^amilton v. 251 Kitchen, Dickinson v. 56 Knatchbull v. Fearnhead, 313 Knight V. B^irber, 186, 209 ■ V. Boughton, 241 V. Hunt, 116 Kruges v. Wilcox, 31 Kymer, Halford v. 161 Kynaston, Clayton v. 282, 285 Lacy V. 285 Kyne v. Mooi-e, 85 Kynman, Whinman v. 78 Kynnersley, Marquis of Ormond v. 178 L. Lacey v. Kynaston, 285 Thompson v. 28 Lack, Thompson v. Ill, 285 Lackington v. Atherton, 41 Ladbrooke, Wheelhouse v. 104 Laing v. Fidgeon, 370 Tucker v. Ill Lake v. Craddock, 279 Tyler v. 355 Lambert's Case, 290 Lambert, Clnugh v. 358 Mason v. 64 Lampert's Case, 237 Lampleigh v. Brathwait, 69 Lane v. Burgh art, 75 Dunford v. 342 Langdale, Lord Ashton v. 320, 321 Langford, Avery v. 86 In re, 260 Langham's Trust, In re, 321 Langston, Wetherell v. 278 Lashbrooke v. Cock, 281 Lassels v. Cornwallis, 246 Lauderdale, Lord Garrard v. 274 Lavater, Walton v. 223, 281 Lavell V. Hicks, 290 Lavender, Greedy v. 351 Law v. Bagwell, 274 V. London Indisputable Life Policy Company, 161 Lawrence, Hall v. 177 Sollers V. 65 v. Smith, 86 Laws, Blacklow v. 355 Lawton v. Lawton, 15 Laythoarp v. Bryant, 77 Lea, Barker v. 348 Leader v. Homewood, 14 Leake v. Loveday, 24 Monys v. 87 Lechmere v. Earl of Carlisle, 263 v. Fletcher, 78 Lesdam, Bussell v. 216 Lee, Brown v. 110 Hopkinson v. 278 Morris v. 82 Waring v. 250 V. Griffin, 40 V. Lockhart, 116 V. Muggeridge, 71 V. Pain, 323 V. Prieaux, 355 Lee V. Young, 261 Leeder, Biddie v. 85 Legg V. Evans, 24, 30, 46 Leicester, Furniss v. 369 V. Rose, 116 Leighton v. Wales, 67, 86 Leith, Mant v. 258 Lempriere, De la Garde v. 349 Leonard v. Baker, 152 Leonino, Gilkes v. 77 Lepard v. Vernon, 368 Lescher, Bain v. 323 Leslie v. Guthrie, 59 V. Richardson, 171 Lett, Stahlschmidt v. 374 Le Vasseur v. Scratton, 342, 350 Lewen v. Dodd, 281 Lewis Bowles's Case, 18 Gilbert v. 355 Heath v. 341 Reynell v. 292 V. Madocks, 271 V. Marling, 216 Lickbarrow v. Mason, 42 Liford's Case, 18 Limerick, Earl of, Gray v. 250 Lincoln v. Windsor, 268 Lindsall v. Thacker, 355 Lindsay v. Gibbs, 59 Lingard, Ex parte, 178 Lingen v. Sowray, 263 Linley v. Taylor, 320 Linton, TroUope v. 343 Lisle, Agar v. 23 Lister, Tidd v. 350 Littlefield v. Shee, 72 Livesay v. Redfern, 317 Lloyd V. Ashby, 290 V. Baldwin, 264 V. Lloyd, 341 V. Tench, 333 Bromage v. 80 Harris v. 152, 322 Powell V. 117 Lockhart, Lee v. 116 V. Reilly, 109 Loftus, Ricketts v. 249 Logan, Hopkins v. 69 Lomas v. Wright, 105 London Dock Company, Calvert v. 110 Indisputable Life Policy Company, Law V. 161 Londonderry & Coleraine Railway Company, Reg. V. 193 Graham v. 345 Long v. Storie, 87. Longman v. Tripp, 233 Longstaff v. Meagoe, 14 Lonsdale, Earl of, v. Countess of Berohtoldt, 243 Rigg v. 21 Lorde, In re, 177 Love V. Gaze, 325 Loveacres d. Mudge v. Blight, 281 Loveday, Leake v. 24 Loveridge v. Cooper, 377, 378 Low, Edmonds v. 318 Lowe, Banner v. 242 XCIV INDEX TO ENGLISH CASES CITED. Lowndes v. Collins, 108 V. Lowndes, 175 Ley, Hodgson v. 41 Loyd, CuUingworth v. 116 Luard's Case, ;^.')3 Lucas V. Dorrien, 35 V. Wilson, 173 Lucy's Case, 70 Lunn, Bank of England v. 188, 190 V. Thornton, 32 Lushington v. Boklero, 18 Lyddon v. Ellison, 250 Lyde v. Barnard, 79, 378 V. Russell, 14 Lygon V. Lord Coventry, 257 Lynch v. Dalzeil, 162 Lyne, v. 355 Lyon V. B>iker, 268 Perrin v. 340 Lyons v. De Pass, 366 Lysons v. Barrow, 307 M. Maberley v. Turton, 257 Macarthur v. Campbell, 175 Macaulay, Bailey v. 292 Macdonald, Walker y. 81 Macdougali, Harnett v. 357 V. Robertson, 170, 171 Mackay, Bentley v. 273 Mackenzie v. Mackenzie, 244 Sandeman v. 250 Mackinnon v. Stewart, 274 Mackintosh v. Trotter, 14 Wellington v. 165 Mackrell, Holmes v. 72 Macleod v. Annesley, 258 Macnaught v. Russell, 122 Macoubrey v. Jones, 250 Maddison, Benyon v. 243 Madeley, Gaters v. 347 Madocks, Lewis v. 271 Maguire, Caulfield v. 109 Malcolm v. Charlesworth, 349 Malkin v. Adams, 125 Attornev- General v. 244 Mallan v. May, "85, 87 Mallet, Dunnicliffv. 281 Maltby v. Carstairs, 111 Man V. Shiffner, 29 Manders v. Williams, 26 Mann, Burnet v. 333 Mangles, Naylor v. 29 Manning's, Matthew, Case, 237 Kekewich v. 273 Manser v. Heaver, 173 Mant V. Leith, 258 March v. Attorney-General, 320 V. Head, 348 y. Russell, 314 T. Warwick, 122 Mare v. Earle, 116 V. Warner, 116 Market overt, the Case of, 366 Markham, Bunn v. 301 Marlborough, the Duke of, v. St. John, 65 Marling, Lewis v. 216 Marris, Bower v. 115 Marriott v. The Anchor Reversionary Co. Limited, 56 Marsh, Archer v. 86 Stone v. 290, 367 Marshall v. Fowler, 348 Gardner v. 348 Shipley v. 143 Holroyd v. 33 Martin, Collins v. 82 Reynish v. 341 Townsend v. 318 V. Crompe, 279 V. Sedgwick, 292, 379 Martindale, Anderson v. 278 Taylor v. 181 V. Booth, 46 v. Smith, 37 Mason, Davis v. 86 Lickbarrow v. 42 Sidwell v. 72 V. Haddan, 166 V. Lambert, 64 V. Morgan, 346 V. Wallis, 171 Mather v. Fraser, 14, 47 v. Scott, 321 Mathias, Gray v. 85 Matthews v. Brise, 258 Houghton V. 29 Maude, Benson v. 313 Scales V. 34 Maunder, AVright v. 151 Maw, Eiwes v. 14 Mawdesley, Driver v. 274 Maxwell's Trusts, In re, 240 May V. Chapman. 82 Mnllan v. 85, 87 Mayes, Farrow v. 96 Mayor, Squire v. 16 Maze, Aubert v. 84 McCullooh, Barrack v. 272 McDonnell v. Hesilrige, 273 McEwen v. Smith, 35 Meacher v. Younge, 256 Meagoe, Longstaff v. 14 Medina v. Stoughton, 369 Medjicot's Case, 132 Meek v. Kettlewell, 70 Melvill, Otter v. 271 Melville, Preston v. 240 Mentney v. Petty, 334 Mercer v. Irving, 67 Meredith v. Farr, 322 Merrett, Powell v. 336 Merriman, Elliott v. 312 v. Ward, 115 Merry, Kingsford v. 35, 366 Meryon v. Collett, 244 Metcalf, AVise v. 65 Methin, Morris v. 93 Metropolitan Counties, Ac, Society, v. Brown, 14 Meux V. Bell, 378 Mexborough, Bower v. 165 Meyer, Hanson v. 37 v. Haworth, 72 Meyrick, Attorney-General v. 320 INDEX TO ENGLISH CASES CITED. xcv McGruire, Asbburner v. 317 Micbell V. Michell, 241 Michelmore v. Mudge, 350 Middleton, Copis v. 109 Miles V. Presland, 188 Miller, Horusby v. 46 Spackman v. 46 V. Miller, 34, 300 T. Race, 365 V. Taylor, 224 Mills V. Barber, 79 Milne, Walker v. 320 V. Walmsley, 14 Milner v. Lord Harewood, 342 Milvain, Chapman v. 196 Minnit v. Whinery, 291 Mitchell, Brooke v. 24, 170, 171 Doe d. Esdaile v. 141j Humble v. 186, 209 Holmes V. 75 V. Ede, 35 Mclver v. Humble, 288 Mclvers, Howell v. Ill McLaine, Hoadley v. 38 McLeod V. Drummond, 312 McMichael, Boydell v. 16 McNeillie v. Acton, 289 Moffatt, Bank of England v. 190 Mollard, Bagley v. 322 Mollett V. Wackerbarth, 83 Molony v. Kennedy, 355 Monkman v. Shepherdson, 72 Montague v. Benedict, 353 Montefiore v. Guedalla, 319 Montolieu, Lady Elibank v. 348 Monys v. Leake, 87 Moodie v. Bannister, 372 Moor V. Barham, 334 Stokes V. 77 Williams v. 73 Moore, Cramer v. 271 Kyne v. 85 V. Darton, 300 V. Erowd, 267 V. Moore, 357 Morell V. Dubost, 93 Morgan, Ex parte, 116, 122 Mason v. 346 Osborn v. 349 Rickman v. 319 V. The Earl of Abergavenny, 19 Morley v. Attenborough, 369 Bird V. 277, 323 Child V. 185 Roddam v. 372 Wright V. 350 V. Boothby, 75 V. Rennoldson, 340, 341 Mornington v. Keane, 272 Morris v. Glynn, 320 V. Howes, 244 V. Kearsley, 279 V. Lee, 82 V. Methin, 93 Morrison, Collett v. 161 Dutton V. 117 V. Glover, 211, 212 Mortimore v. Mortimore, 258 Morton v. Copeland, 226 V. Tibbett, 38 Honner v. 351 Moseley, Inge v. 85 Mosley V. Baker, 212 Moss, Burrough v. 346 V. Hall, 110 Motley V. Downman, 235 McQueen v. Farquhar, 251 Mudge, Michelmore v. 350 Muggeridge, Lee v. 71 Mullen V. Bowman, 324 Munnings, Attwood v. 368 Munro, Ex parte, 377 Murray v. East India Company, 374 V. Lord Elibank, 348, 349 Mussen, Kinnersley v. 95 Myers v. Perigall, 320 N. Nash, Hodgson v. 78, 115 Sprigens v. 177 Naylor v. Mangles, 29 Neate, Franklin v. 26 Needham v. Kirkman, 271 V. Smith, 271 Webb V. 328 Neilson, Ex parte, 198 V. Harford, 220 Nesham, Barry v. 290 Netherseal, Rex v. 305 Newall, In re, 216, 217 Newbon, Wakefield v. 30 Newman, Page v. 108 Newnham, Parberry v. 171 Newton, Ex parte, 267 V. Askew, 273 v. Beck, 11 Nichol, Jackson v. 42 Nicholls V. Judson, 319 V. Rosewarne, 213 V. Stretton, 85, 87 Nichols, Ingleback v. 122 V. Norris, 116 V. Roe, 175, 176 Nicholson, Potter v. 95 V. Revill, 110, 285 Nickels v. Haslam, 220 Nlcolls V. Bastard, 26 Smith V. 99 Nimmo, Ellis v. 70 Nix, Bryans v. 35 Nixon V. Brownlow, 194 Noble, Devaynes v. 115, 286 Vulliamy v. 289 Nockolds, Hunter v. 373 Norbury v. Norbury, 183 Norclifie, Ambergate, Ac, Railway Company V. 193 Norcott V. Gordon, 318 Norfolk Estuary Company, Hall v. 193 Norman v. Baldry, 313 Fergusson v. 84 v. Phillips, 39 V. Thompson, 114 Norris v. Irish Land Company, 60 Nichols V. 116 XCVl INDEX TO ENGLISH CASES CITED. Norris v. Wright, 259 Northeastern Metropolitan Asylum District, Gibbons v. 77 Northey v. Field, 42 V. Northey, 345 Norton v. Frecker, o74 Norwood. Elvy v. 373 Nourse, Richardson v. 174 Nugent, Bhiir v. 371 V. Gitlord, 312 Numes v. Scipio, 186 0. Observer Life Assurance Society, Hodson v. 160 Ockenden, Ex parte, 28 Ogilvie V. Folj.imbe, 76 Oldfield V. Dodd, 131 Oldham v. Hughes, 2C3 Olive, Stephens v. 358 Oliver, Ex parte, 116 Smith V. 321 Onslow V. Onslow, 335 Onwhyn, Stoekdale v. 86 Ormond (Miirquis of) v. Kynnersley, 178 Orr v. Dickinson, 57 Osborn v. Morgan, 349 Silk V. 147 Other V. Iveson, 283 Otter V. Melville, 271 Oulton, Crallan v. 375 Ouseley v. Anstruther, 183 Overhill's Trust, 322 Owen, Eardley v. 271 V. Homan, 111 v. Thomas, 77 Oxford, Earl of, Beavan v. 188 Packman, Sloan v. 87 Page V. Bennett, 162 V. Newman, 108 V. Page, 323 V. Powles, 292, 379 Paget V. Foley, 373 Pain, Lee v. 323 Ridout V. 174 V. Whitaker, 27 Paine, Gleaves v. 348 Palles, Simmonds v. 274 Palmer, Fraser v. 267 Hall V. 85 Hay V. 241 Vandenberg v. 34 V. Wakefield, 353 V. Wheeler, 251 Perberry v. Newnham, 171 Paris V. Paris, 240 Sparrow v. 67 Parish, Drummond v. 296 Parker, Baldy v. 39 Clarke v. 341 Hoare v. 238 Hunter v. 53 Sparling v. 320 Staines v. 267 Parker, Watson v. 105 v. Ince, 138 Parkin v. Carruthers, 288 Parkinson, Ames v. 183 Parnham v. Hurst, 112 Parry, Barrett v. 171 Parsons, Bank of England v. 190 Partington, Andrews v. 256 Partridge, Wheldale v. 262 Pass, Poole v. 269 Patch, Channon v. 18 Patent Derrick Co., Thames Iron Works Co. V. 28 Paton V. Sheppard, 241 Paulett (Lord William), Ex parte, 259 Pawle V. Gunn, 69, 186 Paxton, Cholmely v. 18 V. Popham, 84 Payne v. Deakle, 171 Paynter, Adams v. 266 V. Harrison, 113 Peacock, Berriman v. 18 Hunt V. 376 Rhodes v. 81, 365 Peake, Ex parte, 286 Pearley v. Smith, 241 Pearson v. Dawson, 35, 39 Foster v. 365 Peck, Dawes v. 39, 42 Pedley v. Goddard, 175 Peel V. Tatlock, 111 Peer v. Humphrey, 366 Peering, Ford v. 12 Pelly V. Wathen, 30 Pemberton, Ex parte, 29 Wortham v. 348 V. Vaughan, 86 Pendlebury V. Walker, 110, 116 Pennell v. Reynolds, 126 Pennistone, Waterfall v. 47 Penny v. Innes, 82 Penoyre, Ward v. 313 Penton, Davies v. 67 Perigal, Myers v. 320 Perkins v. Bradley, 44 Groves v. 349 Walker v. 85 Perrin v. Lyon, 340 Perry, Creed v. 352 V. Jenkins, 374 V. Skinner, 220 V. Truefit, 235 Petch V. Tutin, 32 Peter v. Compton, 76 V. Rich, 190 Peterborough (Bishop of), Boyle v. 249 Petre v. Espinasse, 273 Petrie v. Bury, 276 Pettitt, Thompson v. 36 Petty v. Anderson, 343 V. Styward, 280 Mentney v. 334 Pflegar v. Browne, 114, 116 Philanthropic Society v. Kemp, 322 Philips V. Robinson, 10 Phillips, Norman v. 39 V. Phillips, 279, 281 Swan V. 79, 378 INDEX TO ENGLISH CASES CITED. XCVll Phillipson v. Gatty, 258 Philpot V. Briant, 111 Philpott, Ex parte, 117 V. St. George's Hospital, 321 Phipps, Holford v. 269 Pickering v. Appleby, 186 V. Busk, 368 V. Dowson, 369 Pocock V. 95 Pickford, Aspinwall v. 29 Picton, Shaw v. 115 Pidding v. How, 235 Pidgley v. Rawling, 18 Pierce v. Thornely, 350 Pierson v. Garnett, 250 Piggott, Clancey v. 75 Wilson V. 248, 249 Pigot's Case, 83 Pilck, Shower v. 34 Pilkington, Smith v. 212 Pimbley, Fisher v. 173 Pinchon's Case, 101 Pinke, Hinton v. 317 Pinkney v. Hall, 290 Piper, Cradock v. 268 Pitt, Higgins v. 116 Plaice, Russell v. 312 Piatt V. Routh, 310 Plummer, In re, 286 Plymouth (Earl of), Ridout v. 345 Pocock, Brown v. 356 Roberts v. 317 V. Pickering, 95 Pole V. Harrobin, 84 Poole, Croft on v. 147 V. Pass, 269 Pope, Seagrave v. 212 Popham, Paxton v. 84 Poppleton, Everard v. 95 Porter, Watts v. 188 Pott V. Eyton, 290 Potter, Hall v. 341 Kirby V. 317 V. Nicholson, 95 Powell V. Hellicar, 301 V. Lloyd, 117 V. Merrebt, 336 T. Rees, 64 Shoft V. 99 Power V. Barham, 369 Powle V. Cunn, 69 Powles V. Page, 292, 379 Pownal, Hoist v. 42 Prance v. Sympson, 72 Presland, Miles v. 188 Prescot, Snee v. 42 Prescott V. Boucher, 347 Hopkins v. 86 Preston y. Melville, 240 Prestwood, Durant v. 333 Price V. Anderson, 340 Barker v. 285 Green v. 85, 87 Harrington v. 10 Hewitt V. 209 Hyde v. 108 Prosser v. 212 V. Green, 67 Price V. Richardson, 75 Pride v. Fooks, 183, 296 Prieaux, Lee v. 354 Pring V. Pring, 324 Prior V. Hembrow, 170 Pritchard v. Arbouin, 321 Shaw V. 86 Proctor V. Sargeant, 86 Prosser V. Price, 212 Proudley v. Fielder, 355 Pugh V. Stringfield, 278 V. Taylor, 354 Pulham, Farmin v. 268 Pullen V. Purbecke, 49 Purdew v, Jackson, 350 Pye, Ridout v. 172 Pym V. Great Northern Railway Co., 62 Sweet V. 31 Q. Quartermaine v. Bittleston, 51 R. Race, Miller v. 365 Rachfield v. Careless, 324 Radburn v. Jervis, 181 Ralph, Bird v. 65 Ram, Ex parte, 375 Ramsbottom, Harcourt v. 172 Hooper v. 12 Ramsden v. Smith, 271 Randall v. Randall, 279 V. Russell, 239 Rankin, Holderness v. 50 V. Weguelin, 300 Rann t. Hughes, 68 Rannie v. Irvine, 86 Ravenshaw v. Hollier, 274 Rawling, Pidgley v. 18 Rawlings v. Jennings, 182 In re. 122 Rawlinson v. Clark, 290 Williams v. 115 Rawson v. Johnson, 41 Rawsthorn V.' Arnold, 175 Reay, Cookson v. 263 V. Richardson, 114. Redfern, Livesay v. 317 Reed v. Wilmot, 46 Rees V. Keith, 349 Powell V. 64 Reeve, Beaumont v. 72 V. Whitmore, 33 Regina v. Londonderry and Coleraine RaiN way Co., 193 Regina v. Whitmarsh, 196 Reid, Donellan v. 76 West V. 379 V. Fryatt, 171 V. Hollingshead, 290 Reilly v. Jones, 67 Lockhart v. 109 Reindel v. Schell, 67 Relph, Bird v. 63 Randall, King v. 122 XCVlll INDEX TO ENGLISH CASES CITED. Eennoldson, Morley v. 340, 341 Rev-ill, Nicholson v. 110, 285 Rex V. Biirdell, 168 V. Collectors of Customs, 279 V. Greenhill, 359 V. Uill, 171 V. Netherseal, 305 V. Sankey, 30 V. Sherrington, 359 V. Wheeler, 220 Reynell v. Lewis, 292 lleynish v. Martin, 341 Reynolds, Bodley v. 43 I'ennell v. 126 Robinson v. 82 V. Hall, 50 Rhodes, Howard v. 268 Peacock Y. 81, 365 V. Smethurst, 374 Rice V. Shute, 285 Weall V. 319 Rich, Peter v. 310 Richards v. Heather, 283 V. Richards, 347 Wilding V. 274 Richardson v. Bank of England, 195 V. Brown, 369 V. Gilbert, 226 V. Greese, 319 V. Horton, 283 V. Jenkins, 101 V. Nourse, 174 Ex parte, 289 Leslie v. 171 Price V. 75 Reay v. 114 Warwick v. 282 Ricketts, Griffiths v. 264, 274 V. Loftus, 249 Rickman v. Morgan, 319 Ridgway v. Clare, 286 Ridout V. Earl of Plymouth, 345 V. Pain, 174 V. Pye, 172 Rigg V. Earl of Lonsdale, 21 Right d. Compton v. Compton, 341 Ripley V. Waterworth, 190 Rishton v. Cobb, 340 Roberts, Brainah v. 291 Cave V. 336 V. Pocock, 317 V. Spicer, 355 V. Walker, 45 V. Wyatt, 24 Robertson, Dimsdale v. 171 Macdougall v. 170, 171 Robins, Boyd v. 138 V. Hobbs, 122 Robinson, Brandon v. 356 Cusack V. 38 Philips V. 10 V. Geldard, 322 V. Reynolds, 82 V. Robinson, 183, 258 Roddam v. Morley, 372 Rodway, Sanders v. 358 Roe, Nichols v. 175, 176 Rogers, Abbott v. 197 Rogers v. Acaster, 352 V. Kennay, 24 Chaplin v. 34 Rogers's trusts, 242 Rolle, Ryall v. 46 Rose, Leicester v. 116 Rosewarne, Nicholls v. 213 Rosier, Shackell v. 69 Ross, Bateman v. 358 Ross's trust, 357 Rossiter, Hooper v. 240 Rouch V. Great Western Railway Co., 141 Round, Addison v. 24 Roundell v. Breary, 272 Routh, Piatt V. 310 Routledge v. Dorril, 251, 252 V. Grant, 77 Rowlands, Cope v. 84 Rowlandson, Ex parte, 290 Rowles, Ryall v. 34, 46 Royal Mail Co., European Co. v. 56 Ruddell V. Dobree, 301 Rudge V. Winnall, 17 Rushforth r. Hadfield, 29 Russell, Douglass v. 59 Huntley v. 65 Macnaught v. 122 March v. 314 Randall v. 239 V. Ledsam, 215 V. Lyde, 14 V. Plaice, 312 V. Smith, 220 Rust T. Cooper, 144 Rutland, Duke of, v. Duchess of Rutland, 334 Ryall V. Rolle, 46 V. Rowles, 34, 46 S. Saddler's Company v. Badcock, 162 Sainter v. Ferguson, 67 Salkeld, In re, 177 Saloon Omnibus Company, Hale v. 49 Salt, Stead v. 291 Samon's Case, 173 Samuda, Zwinger v. 35 Samuel v. Duke, 366 V. Howarth, 110 Sandeman v. Mackenzie, 250 Sanders, Bloxham v. 41, 43 V. Rodway, 368 Sanderson v. Bell, 28 Sandwich, Ca.«e of Lord, 252 Sandys, Warburton v. 266 Sanger, Cutten v. 273 Sankey, Rex v. 30 Sanville v. The Commissioners of Inland Revenue, 275 Sargeant, Proctor v. 86 Sargent, Higgins v. 108 Saunders, De Mautort v. 286 Tollit V. 178 V. Topp, 39 V. Wakefield, 75 Savage, Browne v. 378 INDEX TO ENGLISH CASES CITED. XCIX Savill V. Barchard, 29 Sawyer, Whittem v. 348 Sayers, Horton v. 165 Scales V. Maude, 34 Scarborough v. Borman, 356 Scarpellini v. Atcheson, 347 Scarsbrook, Edwards v. 97 Scattergood v. Sylvester, 367 Schell, Reindel v. 67 Schwabe, Clift v. 160 Scipio, Numes v. 186 Scott V. Avery, 166 V. Champernown, 30 v. Corporation of Liverpool, 166 V. Jones, 375 V. Lord Hastings, 188 V. Spashett, 348. 349 V. Van Vansaudau, 168 Driver v. 269 Drury v. 271 Evans v. 254 Mather v. 321 Scottish Union, &c., Simpson v. 162 , Scratton, Le Vasseur v. 342, 350 Seagrave v. Pope, 212 Seaton v. Benedict, 353 Sedgwick, Martin v. 292, 379 Selby v. Selby, 76 Self, Fleming v. 212 Seton, Clarke v. 103 Sewell, Stickney v. 253 Shackell v. Rosier, 69 Shafto V. Powell, 99 Shalmer, Spalding v. 264 Shaw, Badger v. 47 Hodgson V. 109 T. Evans, 93 V. Picton, 115 V. Pritchard, 87 Shee, Clarke v. 365 Littlefield v. 72 Shelley, Gill v. 322 Shepherd, Cooper v. 43 Zachary v. 175 Shepherdson, Monkman v. 72 Shepley v. Davis, 37 Sheppard v. Duke, 371 Shepperd v. Kain, 369 Paton V. 241 Sherrard v. Sherrard, 241 Sherrington, Piex v. 359 v. Yates, 346 Sherwood, In re, 267 Shewen v. Vanderhorst, 374 Shiffner, Man v. 29 Shilling v. Accidental Death Insurance Com- pany, 160 Shipbrook, Lord, v. Lord Hinchinbrook, 268 Shipley V. Marshall, 143 Shipman, Bush v. 116 Shore, Lady v. Billingsley, 277 Short, Brewin v. 141 Shortland, Ex parte, 273 Shower v. Pilck, 34 Shute, Rice v. 285 Shuttleworth v. Greaves, 317 Wigg v. 85 Sibree v. Tri^jp, 114 Sidwell v. Mason, 72 Silk, Jervoise v. 257 v. Osborn, 147 Simmonds v. Palles, 274 Simmons, Farebrother v. 40 V. Gutteridge, 303 Simond v. Hibbert, 29 Simpson, Cowell v. 29, 31 V. Scottish Union, &c., 162 Thompson v. 251 Sims V. Thomas, 272, 273 Simson v. Ingham, 115 Sinclare v. Jackson, 373 Skarf V. Soulby, 272 Skerrat, Ex parte, 273 Skey V. Barnes, 254 Skillern, Amies v. 277 Skinner, Braithwaite v. 6 Perry v. 220 V. Upshaw, 28 Skip, West V. 34 Slatter v. Slatter, 358 Sleech v. Thorington, 317 Slingsby's Case, 276, 278 Sloane v. Packman, 87 Smailes v. Wright, 177 Small, Churchill v. 12 Jeffereys v. 279 Smallpiece, Irons v. 34 Smarte v. Edsun, 283 Smethurst, Rhodes v. 374 Smith, Antrobus v. 34 Carpenter v. 216 Farmer v. 212 Fox V. 173 Grace v. 289 Huichings v. 250 Lawrence v. 86 McEwin V. 35 Martindale v. 37 Needham v. 271 Pearley v. 241 , Ramsden v. 271 Russel V. 226 Vernon v. 162 Whitemore v. 172 Williams v. 366 V. Bond, 103 V. Bruning, 341 V. Chichester, 30 V. Clarke, 81 ^ V. Hurst, 274 V. Jarvis, 290 V. Keating, 274 V. NicoUs, 99 v. Oliver, 321 V. Pilkington, 212 V. Smith, 314, 378 Smithard, Cornforth v. 72 Snee v. Prescott, 42 Snellgrove v. Baily, 300 Snow, Goddard v. 354 Wilbraham v. 24 Soane, Conduitt v. 238 Sellers V. Lawrence, 65 Somerville, Hothaiu v. 12 Somes, British Empire Shipping Co. v. 28 Sothern, Swanwick v. 37 INDEX TO ENGLISH CASES CITED. Souch V. Strawbridge, 76 Soulby, Skarfv. 272 South Carolina Bank v. Case, 291 Sowray, Lingen v. 2(13 Spackman v. Miller, 46 Spalding, Alsager v. 116 V. Shalmer, 264 Sparling v. Parker, 320 Sparrow, Ex parte, 40 Farmer v. 212 V. Paris, 67 Spashett, Scott v. 348, 349 Spencer, Hill v. 85 V. Spencer, 250 Spettigue, White v. 366 Spicer, Roberts v. 355 Spiers, Thompson v. 377, 379 Spottiswood's case, 293 Sprague, Ex parte, 287 Sprigens v. Nash, 177 Squire, Mayor v. 16 V. Whitton, 110 Stafford, Earl of, v. Buckley, 181 Stahlschmidt v. Lett, 374 Stainbank, Davies v. 110 Stallwood, Tharpe v. 329 Stalworth v. Inns, 172 Stamford, Heard v. 353 Stamper v. Barker, 358 Stanes v. Parker, 267 Staniland v. AVillot, 301 Stonley v. Bernes, 298 Crossfield v. 98 Stannard, Angier v. 269 Stansfeld v. Cubitt, 47 Stanton v. Hall, 350 Statham, Adam v. 173 Stead, Barker v. 292 V. Salt, 291 Steadman v. Hockley, 30 Steele, Swan v. 290 Steinmitz v. Halthin, 349 Stephens, Edgeberry v. 218 Hart V. 347 V. Olive, 358 Sterling, Exparte, 29 Stevenson v. Blakelock, 29 Toft V. 373 St.. George's Hospital, Philpott v. 321 St. John, Lord, v. Boughton, 371 • V. Lady St. John, 358, 359 Marlborough, The Duke of V. 65 Steward v. Greaves, 196 Stewart, Hitchman v. 110 Stewart, Mackinnon v. 274 Stickney v. Sewell, 258 Stiff, Cassell v. 232 Stockdale v. Onwhyn, 86 Stocken v. Stocken, 256 Stocker v. Brockelbank, 290 Stokes, Brice v. 268 v. Holden, 45 v. Moor, 77 Stone V. Marsh, 290, 367 Storie, Long v. 87 Stoughton, Medina v. 369 Stoveld V. Hughes, 34 Strafford, Lord, Byng y. 242 Strathmore, Countess of, v. Bowes,. 354 Stratton v. Grimes, 341 Strawbridge, South v. 76 Streathfleld v. Halliday, 284 Stretton, Nicholls v. 85, 87 Stringfield, Pugh v. 278 Strode v. Blackburne, 12 Strutt, Deeks v. 6 Galsworthy v. 67 Stuart V. Burrows, 306 Grey v. 271 Stubbs, Hughes v. 274 Studdy, Churchward v. 21 Sturges v. Chapneys, 348 Welchman v. 329 Sturgis V. Darell, 374 Styles v. Guy, 268 Styward, Petty v. 280 Sumner, Gambart v. 229 Sunbolf V. Alford, 28 Sutton, Ex parte, 132 V. Buck, 26 Fitch V. 114 Swallow V. Binns, 254 Swan V. Steele, 200 Swann v. Phillips, 79, 378 Swans, The Case of, 19 Swauwick v. Sothern, 37 Swayne v. Swayne, 378 Sweet V. Benning, 226 V. Pym, 31 Swinburne, Craythorne v. 110 Swinnerton, Heming v. 160 Swinton, AVilloughby v. 104 Sworder, Castle v. 39 Sylvester, Scattergood v. 367 Symes, Balch v. 30 Symonds, Thompson v. 229 Williams v. 378 Sympson, Prance v. 72 Synge, Howe v. 85 Taggart, Carter v. 241, 349 Tapfield v. Hillman, 32 Tappenden v. Burgess, 117 Tate v. Hibbert, 300 Tatlock, Peel v. Ill Tattersair, Kirkpatrick v. 72 Taunton, Wood v. 178 Taylor v. Haygarth, 336 v. Martindale, 181 V. Pugh, 354 TurnbuU, v. 189 Linley v. 320 Miller v. 224 In re, 359 Tetley v. 122 Wallis V. 244 Waters v. 165 Tebbs V. Carpenter, 183 Teesdale, Dickinson v. 375 Tempest v. Tempest, 322 Templeton v. Warrington, 254 Tench, Lloyd v. 333 Tetley y. Taylor, 122 INDEX TO ENGLISH CASES CITED. CI Teynham, Lord, v. Webb, 250 Thacker, Lindsall v. 355 Thames Iron Works Company v. Patent Der- rick Company, 28 Tharpe v. Stallwood, 329 Thomas v. Desanges, 141 James v. 103 Owen V. 77 Sims V. 272, 373 Thomason v. Frere, 280 Thompson v. Dominy, 59 V. Griffin, 256 V. Lacey, 28 V. Lack, 111, 185 V. Pettit, 36 V. Simpson, 251 T. Spiers, 377, 378 V. Symonds, 229 V. Thompson, 320 Farrant v. 16 Fraser v. 70 Hill V. 218, 220 Jackson v. 152 Norman v. 114 Thompson's Trusts, 45 Thorington, Sleech v. 317 Thorneley, Pierce v. 350 Thornton, Lunn v. 32 Thorpe, Glynn v. 100 Williams v. 377, 379 V. Jackson, 286 Thurlow, Cunynghame v. 252 Tibbett, Morton v. 38 Tidd V. Lister, 350 Tidsvveil v. Angerstein, 161 Tipping V. Tipping, 345 • Todd V. Wilson, 267 Toft V. Stephenson, 373 Tollit V. Saunders, 178 Tolson V. Dykes, 155 Tomlin v. Mayor of Fordwich, 173 Topham, Duncan v. 77 Ex parte, 139 Topp, Saunders v. 39 Townroe, Wightman v. 289 Townsend v. Martin, 318 Townshend, Lord, v. Windham, 345 Travers v. Travers, 271 Tripp, Longman v. 233 Sibree v. 114 Trollope v. Linton, 343 Trotter, Mackintosh v. 14 Truefit, Perry v. 235 Trueman v. Fenton, 72 Trye v. Gloucester, Corporation of, 321 Williams v. 209 Tucker, Hayter v. 320 V. Laing, 111 , Tuer V. Turner, 353 Tugman v. Hopkins, 355 Tullett V. Armstrong, 356 Tupper, Bamfield v. 78 Turnbull, Godfrey v. 288 Taylor v. 189 Turner, Kidson v. 72 Tuer V. 353 V. Turner, 181, 255 V. Vaughan, 85 Turner v. Ward, 34 V. Wood, 301 Turton, Maberley v. 257 Tutin, Petch v. 32 Tutton, Holmes v. 113 Twynam, Coope v. 110 Twyne's Case, 45, 71 Tyler v. Jones, 170 V. Lake, 355 Tyndall, Attorney-General v. 321 Tyre, Williams v. 209 U. Upfill's Case, 293 Upshaw, Skinner v. 28 Usborne, Jenkyns v. 42 Valpy, Dickinson v. 291 Van V. Barnett, 263 Vandenberg v. Palmer, 34 Vandeputt, Wiseman v. 42 Vanderhorst, Shewen v. 374 Van Sandau, Scott v. 168 Vansittart v. Vansittart, 359 Vaughan, Grant v. 365 Jenkin v. 272 Pemberton v. 86 Turner v. 85 Walmsley v. 249 Vawdry, Cartwright v. 322 Vawser, Brown v, 179 Veal V. Veal, 300 Venables v. East India Company, 304 Vere v. Ashby, 290 Vernon, Davis v. 10, 12, 30 Lepard v. 368 V. Smith, 162 Vick, Edelston v. 235 Viner v. Francis, 323 Vulliamy v. Noble, 289 W. Wade V. Dowling, 173 Wackerbath, Mollett v. 83 Wain V. Warlters, 74 Waineright, Barclay v. 240 Wainman v. Kynman, 78 Wainsford, Warner v. 329 Waite V. Jones, 86 Jones V. 358 Wakefield v. Brown, 278 V. Newbon, 30 Palmer v. 375 Saunders v. 75 Wales, Leighton v. 67, 86 Walford, Dyke v. 327 Walker v. Giles, 212 V. Macdonald, 81 V. Milne, 320 V. Perkins, 85 Pendlebury v. 110, 116 Cll INDEX TO ENGLISH CASES CITED. Walker, Roberts v. 45 ■\Voodineston v. 356 Young V. 174 Wall, Harris v. 73 Wallace v. Auldjo, 349 V. Woodgate, 28 Wallis, Binnington v. 70, 85 Fordham v. 78 Ma?on V. 171 V. Day, 86 V. Ilodson, 334 V. Tnylor, 244 Walmsley v. Vaughan, 249 Walrond v. Walrond, 359 Walsh, Gale V. 81 V. AVhitcomb, 112 Walter, Adcock v. 122 V. Ilodge, 300 Idle's Case, 18 Walters, Bevan v. 28 Walton, Hitchman v. 14, 16 V. Lavater, 223, 281 Wane, Cumber v. 114 Warburton V. Hill, 189 V. Sandys, 266 Ward, Bainton v. 246 Merriman v. 115 V. Beck, 54 V. Byrne, 86 v. Combe, 240 V. Penoyre, 313 V. Turner, 34 V. Yates, 349 Warde, Bristow v. 250 In re, 260 Dudley V. 15 Warden v. Ashburner, 241 Waring v. Lee, 250 Warlters, Wain v. 72 Warner, Mare v. 116 V. Wainsford, 329 Warrington, Templeton v. 254 Warwick, Countess of, Edwards T. 242 March v. 122 V. Richardson, 282 Waterfall v. Pennistone, 47 Waterhouse, Close v. 29 Waterpark, Young v. 248 Waters v. Taylor, 165 Waterworth, Ripley v. 190 Wathen, Pelly v. 30 Watson V. Birch, 371 V. Parker, 105 Jessopp V. 333 Keightley v. 278 Watt V. Wiitt, 355 Watts V. Girdlestone, 183, 269 V. Jefferyes, 188 V. Potter, 188 Waugh V. Carver, 289, 291 Way V. Bassett, 286 Weall V. Rice, 319 Weatherby, Brown v. 286 Webb V. Fox, 147 V. Grace, 341 V. Hewitt, 111 V. Needham, 328 Teynham, Lord, v. 250 Webster v. Webster, 289 Weguelin, Rankin v. 300 Welchman, In re, 348 V. Sturgis, 329 Weld, Graves v. 17 Weldon v. Gould, 29 Wellnnd, Balfour v. 204 Wellesley v. Beaufort, Duke of, 359 V. Wellesley, 272 Wellington v. Mackintosh, 165 Wells v. Horton, 76 Wennall v. Adney, 72 West v. Burney, 251 V. Reid, 379 V. Skip, 34 Westland, Wiseman v. 12 Westmacott, Harnier v. 233 Westmeath, Marquis of, Hindley v. 357 Weston, Foster v. 108 Wetherell v. Langston, 278 V. AVilson, 257 Whale V. Booth, 312 Whalley, Carter v. 288 Wheatcroft v. Hickman, 290 Wheeler, Bushel v. 38 Doe d. Stace v. 303 Palmer v. 251 Rex v. 220 Wheelhouse v. Ladbrooke, 104 Wheelwright v. Jackson, 144 Wheldale v. Partridge, 262 Whinery, Minnit v. 291 AVhitaker, Pain v. 27 AVhitcomb, Walsh v.;il2 Whitmore, Reeve v. 33 White, Acton.v. 357 Blake v. 110 Corbitt V. 138 V. Grane, 257 V. Spettigue, 366 Whitfield v. Bewitt, 18 Whitmarsh, Regina v. 196 Whitmore v. Smith, 172 AVhittaker v. Howe, 85 AVhittem v. Sawyer, 348 AVhittingstall v.'Grover, 286 Whittle V. Henning, 352 Whitton, Squire v. 110 Whorwood, Cooke v. 173 Wigg v. Shuttleworth, 85 Wightman, Hodgson v. 116 V. Townroe, 289 Wilbraham v. Snow, 24 Wilcox, Kruges v. 31 Wild V. Clarkson, 103 Wilding V. Richards, 274 Wildman v. Wildman, 182 Wiles V. Gresham, 261 Wilkins, Bristead v. 189 Wilkins v. Bromhead, 37 Wilkinson v. Adams, 322 V. Byers, 114 v. Candlish, 125 V. Henderson, 286 Willett V. Chambers, 290 Williams v. Burgess, 96 V. Evans, 14 T. Frost, 215 INDEX TO ENGLISH CASES CITED. cm Williams v. Hay ward, 212 V. Henshaw, 277 V. Moore, 73 V. Rawlinson, 115 V. Smith, 366 V. Symonds, 378 V. Thorpe, 377, 379 V. Tyre, 209 Eads V. 173 Ex parte, 257 Manders v. 26 Williamson, Chamberlain v. 63 Willing V. Baine, 277 Willis V. Black, 271 V. De Castro, 285 V. Hiseox, 268, 269 Willomatt, Cooper v. 27 Willott, Staniland v. 301 Willoughby, Foljambe v. 257 V. Swinton, 104 Wilmer v. Currey, 283 Wilmot, Reed v. 46 Wilmshurst v. Bowker, 43 Wilson v. Brownsmith, 318 V. Piggott, 248, 249 V. Wilson, 268, 358 Lucas V. 175 Todd V. 267 Wetherell v. 257 Wilton T. Colvin, 271 Wiltshire, Doran v. 284 Winch V. Keeley, 112 Winchelsea, Earl of, Deering v. 109 Windham, Townsend, Lord, v. 345 Windle v. Andrews, 81 Windsor, Lincoln v. 268 Winn V. Ingilby, 16 Winnall, Rudge v. 17 Wise V. Metcalf, 65 Wiseman v. Westland, 12 V. Vandeputt, 42 Witt V. Amis, 300 Wolverhampton New Waterworks Co. v. Hawkesford, 193 Wombwell v. Hanrott, 248, 249 Wood V. Adcock, 173 V. Dixie, 49 Wood V. Taunton, 178 V. Turner, 301 V. Wood, 113 Ex parte, 51, 130 Gomley v. 267 Woodgate, Acton v. 274 Wallace v. 28 Woodhead, Creswick v. 303 Woodmeston v. Walke, 356 Woods V. Foote, 122 Woolfit, Cooper v. 17 Woolley, Jackson v. 78, 285 Worrall v. Jacob, 358 V. Johnson, 30 Wortham v. Pemberton, 348 Wren v. Bradley, 358 Wright, Cook v. 70 Lomas v. 105 Norris v. 259 Smailes v. 177 V. Maunder, 151 V. Morley, 350 Wrightson v. Bywater, 173 Wyatt, Roberts v. 24 Wynne, Hughes v. 103, 375 Yates, Bridge v. 277 Dixon V. 36, 41, 43 Sherrington v. 346 Ward V. 349 Tea V. Field, 10 Yeoman v. Bradshaw, 105 Young V. Axtell, 288 V. Walker, 174 V. Waterpark, 248 Ex parte, 51 Hazleham v. 290 Lee V. 261 Younge, Meacher v. 256 Zachary v. Shepherd, 175 Zwinger v. Samuda, 35 PRINCIPLES LAW OF PERSONAL PROPERTY. INTRODUCTORY CHAPTER. OF THE SUBJECTS AND NATURE OF PERSONAL PROPERTY. The English law of property is divided into two great branches, the law of real property, and the law of personal property. The feudal rules, which respected the holding and culture of land, were the elements of the common law of real property; the rules relating to the disposition of goods were the origin of the law of personal property. Such property was anciently of little impor- tance, and its laws were consequently few and simple. It did not, however, escape the ecclesiastical influence which spread so widely in the middle ages; and it has thence derived that sub- jection to the rules of the civil law by which it is characterized when transmitted by will or distributed on intestacy. The division of property into real and personal, though now well recognized, and constantly referred to even in the acts of the legislature, is comparatively of modern date. In ancient times, property was divided into lands, tenements, and hereditaments on the one hand, and goods *and chattels on the other. These ^^^, two last terms appear to be synonymous. In process of time, '- "-" however, certain estates and interests in land grew up, which were unknown to tlie ancient feudal system, and could not con- veniently be subjected to its rules. Of these the most important 4 50 INTRODUCTORY CHAPTER. were leases for years.* Such interests, therefore, were classed among chattels ; but as they savored, as it was said, of the realty, they acquired the name of chattels real.{a) In more modern times, chattels real have been classed, with other chattels, within the division of personal property; but as chattels real, though personal property, are in fact interests in land, the laws respecting them have been noticed in the author's treatise on the Principles of the Law of Real Property.(6) Chattels real will therefore be only incidentally noticed amongst the subjects treated of in the present work. When leases for years, and other incidents in land of the like nature, were admitted into the class of chattels as chattels real, it became necessary that such goods as had previously constituted the whole class, should be distinguished from them by some further name ; and the title of chattels fersoiml was accordingly applied to all such chattels as did not savor of real estate. For this title, the choice of two reasons is given to the reader by Sir Edward Coke, " because, for the most part, they belong to the person of a man, or else for that they are to be recovered by personal actions."(c)^ The former of these two reasons has (a) Co. Litt. 118 b. (b) Principles of the Law of Real Property, 315, et seq., 1st ed. ; 307, 2d ed. j 322, 4th ed. ; 333, 5th ed. ; 350, 6th ed. (r) Co Litt. 118 b. 1 A lease for any number of years is, in estates, renewable forever, are subject to the\ the common law, of no higher dignity than same law of descent and distribution as es- 1 a lease or term for one year. Both are mere tates in fee. See Northern Bank of Ken- chattels and pass to the personal representa- tucky v. Roosa, 13 Ohio R. 334. lives of a decedent; 7 Smedes & Marshall's In relation to terms to attend the inherit- R. p. 479 ; Gay's Case, 5 Mass. R. 419 ; Rey- ance, although on the death of the ancestor, nold's Heirs v. Com'rs of Stark Co., 5 Ohio the legal title to these vests in his personal R. 204 ; Lessee of Bisbee v. Hall, 3 *0. R. representatives, yet in equity they belong to 499; Brewster «. Hill, 1 N. Hamp. R. 351. the heir, and are considered part of the in- 1 In Massachusetts, by the Revised Statutes of heritance ; Lovet v. Needham, 2 Vern. 138 ; \ 1860, ch. 90, § 20, p. 471, it is declared that Whitchurch v. Whitchurch, 2 P. Wms. 236 ; i the lessees and assignees of lessees of real Villiers v. Villiers, 2 Atkins, 71 ; Maundrell \ estate, for the term of one hundred years or v. Maundrell, 7 Ves. Jr. R. 577 ; and see / more, in cases where there is an unexpired post p. 236, note (I). residue of fifty years or more of the term, ^ However unimportant any discussion shall be regarded as freeholders, and the may be as to the origin of the term personal, estate subject like freehold estates to descent, as ascribed to chattels, it is conceived that devise, dower, and execution. In Ohio, the reason of the designation as given by Revised Statutes, 1860, ch. 36, § 20, p. 505, Blackstone, is the correct one. All chattels and ch. 87, § 1, p. 1142, permanent leasehold formerly known to the law were by their OF THE SUBJECTS AND NATURE OF PERSONAL PROPERTY. 51 been chosen by Mr. Justice Blackstone.(6?) But it is submitted that the latter reason is most probably the true one. • When goods and chattels began to be called personal, they had become *too numerous and important to accompany the persons of ^ ^ their owners. On the other hand, the bringing and defending of actions has always been the most prevailing business of law- yers ; from the different natures of actions, the nomenclature of the law is therefore most likely to have proceeded. Now actions were long divided into three classes, — real actions, personal actions, and mixed actions. Real actions were brought for the recovery of lands, and by their aid, the real land was restored to its rightful owner. Mixed actions, as their name imports, were real and personal mixed together. Personal actions were brought in respect of goods, for which, as they are in their nature de- 1 structible, nothing but pecuniary damages could with certainty i be recovered from the person against whom the action was « brought. Accordingly, by the ancient law of England, there never were more than two kinds of personal actions in which there was a possibility of recovering, by the judgment of the court, the identical goods in respect of which the action was brought. One of these was the action of detinue, where goods, having come into a man's possession, were unlawfully detained by him: in which case, however, the judgment was merely con- ditional, that the plaintiif recover the said goods, or {if they could not be had) their respective values, and also the damages for de- taining them.(e) The other was the action of replevin, brought for goods which had been unlawfully distrained ; but in this case the goods were never beyond the custody of the sheriff", who is an officer of the law, and their safe return could therefore be 8ecured.(/)* Goods therefore seem to have been called personal, (d) 2 Black. Com. 16, 384 ; 3 Black. Com. 144. (/) Ibid. 146. (e) 3 Black. Com. 152. nature movable, and a very large class of of the actual domicll of the owner. This them, such as debts, obligations, and the would seem to be a more probable reason, like, had no tangible existence, and were sup- than the mere fact of their being the subject posed by the law to " attend the person," and of actions called personal, are subject to the incidental laws of the i In the United States generally, the ac- doraicil of the owner, in the case of intestacy tion of replevin lies, wherever one claims and insolvency; while real estate being im- goods in the possession of another (see/w.v/), ; movable, is only governed by the laws of and on a claim of property, the defendant the place where it is situated, independently can retain the goods if he gives security to 52 INTRODUCTORY CHAPTER. ^ — because the remedy for their abstraction was against the person ' who had taken them away, or because, in the words of Lord produce them, and, where the property is so retained, the plaintiff's right is turned into a chose in action, and his right to the property absolutely gone ; Fisher v. Whoolery, 25 Pa. St. R. 197 ; and see also, Pugh v. Calloway, 10 0. R. (N. S.) 488 ; but even in England it was not formerly the case, as is stated in text, that the goods were in the custody of the sheriff; 1 Saund. (by Williams) 347 a, note 2. See also 12 Mass. R. 180, note. I In New York, replevin lies for any tortious I taking of goods ; Pangburn v. Partridge, 7 I Johns. R. 140 j Gardner v. Campbell, 15 Id. ' 402; Mills v. Martin, 19 Id. 31; Clark i;. Skinner, 20 Id. 467; Judd v. Fox, 9 Cow. R. 259 ; Dodworth v. Jones, 4 Duer"s R. 201. But it will not lie for illegal detention of property, where the party comes to possession by delivery from a person having a special property in the goods ; Marshall v. Davis, 1 Wendell's R. 109. As against wrongdoers and trespassers, it has been decided in North Carolina, that a paramount right of property is not necessary to support the action, but a naked possession, or a right of possession coupled with the beneficial interest, will be suflScient ; Fresh- water V. Nichols, 7 Jones's Law R. 251. f In Pennsylvania, wherever one man claims I goods in the possession of another, replevin will lie ; Weaver v. Laurence, 1 Dall. R. 157; Shearick v. Huber, 6 Binn. R. 3; Stoughton V. Rappalo, 3 Serg. & Raw. R. 562 ; Snyder v. Vaux, 2 Raw. R. 428 ; Pearce V. Humphries, 14 Serg. & Raw. R. 25 ; Bower «. Tallman, 5 Wat. & Serg. R. 561 ; Harlan v. Harlan, 15 Pa. State R. 513 ; Boyle V. Rankin, 22 Id. 168 ; but se» Bonsall v. Comly, 44 Id. 442. It is effectual for the delivery of personal property only ; Roberts V. Dauphin Deposit Bank, 19 Id. 71; and it will not lie by one, claiming land against another in the actual adverse possession thereof, under claim of title for fixtures, aliter, where there is no claim of adverse title; Mather v. Trin. Church, 3 Serg. & Raw. R. 509 ; Bowen v. Caldwell, 10 Id. 114; Harlan v. Harlan, 15 Pa. St. R. 513. In Massachusetts, it has been held that as a general principle the owner of a chattel may take it by replevin from any person whose possession is unlawful, unless it be in the custody of the law, or, unless it had been tAken by replevin from him, by the party in possession ; Ilsley v. Stubbs, 5 Mass. R. 280 In order to maintain it, the plaintiff must have the right of property and of possession, j at the time of taking or of suing out his \ writ ; Wheeler v. Train, 3 Pick. R. 255 ; j Walcot V. Pomeroy, 2 Id. 121.* But where' goods which had been leased by the owner, were attached as the property of the lessee while they were in his possession under the lease, and the owner replevied them from the officer, and before judgment the lease ex- pired, the defendant had judgment for costs only, and not for a return ; Wheeler v. Train, 3 Pick. R. 255. If goods be obtained by means of false and fraudulent pretences, the owner of the goods may reclaim them by this action; Buifington v. Gerrish, 15 Mass. R., 156. So replevin will lie for goods which are unlawfully detained, though the taking be lawful: Badger v. Phinney, 15 Mass. R. 359 ; Baker v. Fales, 16 Id. 147 ; Marston v. Baldwin, 17 Id. 606. [Co?itra, Meany v. Head, 1 Mason's R. 319. J And when goods are delivered in pursuance of a conditional sale, and the condition is not performed, the vendor may reclaim the goods by this action ; Marston v. Baldwin, 17 Mass. R. 606. But if the property is not in the plaintiff at the time of the taking, or if he then had no right to the possession against the defend- ant, replevin cannot be maintained, unless a demand has been made upon the defendant by the plaintiff for the chattels, since he ac- quired the property in them ; Gates v. Gates, 15 Mass. R. 310. Such a demand, however, will be sufficient if made on the day of the date of the writ, before it is served, although after its delivery to an officer ; Badger v. Phinney, 15 Mass. R., 359. Replevin will not lie by one joint owner of a chattel, but the objection can only be taken by a plea in abatement where he sues for the whole ; Reinheimer v. Hemingway, 35 Pa. St. R. 432. If he sues for a moiety the court will abate the writ, ex officio; D'Wolf v. Harris, 4 Mason's R. 515. And by the same OF THE SUBJECTS AND NATUEE OF PERSONAL PROPERTY. 53 Coke, they were "to be recovered by personal actions.(^) *recent statutes,(A) however, provision has been made for enforcing the delivery of goods, in actions for their de- (g) See PriDciples of the Law of Real Property, 7. (A) Stats. 17 and 28 Vict. c. 125, s. 78 ; 19 and 20 Vict. c. 97, s. 2. By [*4] case it was held, that an assignment of goods at sea and their proceeds, if bona fide, is suf- ficient to pass the legal title to the goods, and also to the proceeds, so that replevin will lie ) for the latter. In Pennsylvania, if trees cut down be con- verted by defendant into rails and posts, this is not such an alteration of the property as will prevent recovery in replevin ; Snyder v. Vaux, 2 Rawle's R. 423 ; and see Lee v. Gould, 47 Pa. St. R. 398. In Maine, either a general or special own- ership of property will sustain the action : School Dist. No. 5 v. Lord, 44 Maine R. 374 ; and it may be maintained for goods unlawfully detained, though the taking was lawful; Seaver u. Dingley, 4 Greenleaf "s R. 306 ; but there must be a demand for the article and refusal to deliver in this case, or other evidence of conversion ; Newman v. Jeune, 47 Maine R. 520. In New Jersey, where goods are so taken as to entitle the owner to an action of tres- pass, replevin can be maintained ; Bruen v. Ogden, 6 Halst. R. 370 ; or, for goods taken and unlawfully detained ; Nixon's Dig., edit. 1861, p. 728; but there must be both the unlawful taking and the unlawful detention ; Harwood v. Smethurst, 5 Dutch. R. 195. And it will lie for such articles as "mills, barns, steam engines, offices and sheds ;" Breasley v. Cox, 4 Zabr. 287. In Ohio, replevin lies in all cases un- less excepted by statute ; Stone v. Wilson, Wright's R. 159. In Indiana, demand may be necessary where the defendant has goods by license of the plaintiff; but, where there is a wrongful possession of goods, as where they were ob- tained by fraud, force, or otherwise without the owner's consent, no demand need be made ; 8 Blackf. R. 244. In Delaware, it may be used wherever one claims persona! property in possession of another; Clark r. Adair, 3 Har. R. 113. A purchaser at sheriff's sale may maintain replevin after demand and refusal. 16 Id. 62. In Maryland, replevin lies in all cases where the plaintiff seeks to try the title to personal property, and recover its possession. Brooke v. Berry, 1 Gill's R. 163. In Kentucky, it will not lie to recover goods held adversely to plaintiff; Dillon v. Wright, J. J. Marsh. R. 10 ; nor where the legal title is not in the plaintiff; Daniel v. Daniel, 6 B. Mon. R. 231. In Missouri, replevin will lie for goods un- lawfully taken or detained when trespass will ; Skinner v. Stouse, 4 Mo. R. 93 ; Crocker v. Man, 3 Mo. R. 345, 472 ; but the plaintiff must have the title to the property or the right of possession ; Pilkington v. Trigg, 28 Missouri R. 95. In Tennessee, to support replevin, the plaintiff must show right of possession as against the defendant ; Bogard v. Jones, 9 Hump. R. 739; Bradley v. Mitchell, 1 Smith's R. 346 ; Shaddon v. Knott, 2 Swan's R. 358. In Arkansas,, under the Revised Statutes (same as that of New York on replevin), re- plevin may be maintained for an unlawful taking or detention of a chattel, but the plaintiff must show title ; Beebe v. De Baun, 3 Eng. R. 566 ; Rev. Stat. 695 ; Cox v. Marrow, 14 Ark. R. 603. The owner of property may bring replevin against a pur- chaser, where his property has been sold under execution against a third person ; 3 Eng. R. 83. As in New York, possession of chattels and actual wrongful taking by de- fendant, will support replevin. It may be brought wherever trespass de, bonis asportatis will lie ; Trapnall v. Hattier, 1 Eng. R. 21. In Virginia, replevin is confined by stat- ute (1823) to cases of distress for rent; 1 Robinson's Pr. 408. As also in Mississippi ; Wheelock v. Coa- zens, 6 Howard's R. 279 ; and to maintain 54 INTRODUCTORY CHAPTER. tention or for breach of contract to deliver them for a price in money; and if they cannot be found, all the lands and chattels of the defendant may be distrained till they are delivered. Chattels personal, then, are the subjects of the present treatise. In ancient times they consisted entirely of movable goods, visi- ble and tangible in their nature, and in the possession either of the owner or of some other person on his behalf. I^Tothing of an incorporeal nature was anciently comprehended within the class of chattels personal. In this respect the law of personal property strikingly differs from that of real property, in which, from the earliest times, incorporeal hereditaments occupied a conspicuous place. But although there was formerly no such thing as an incorporeal chattel personal, there existed not unfre- quently a right of action, or the liberty of proceeding in the courts of law either to recover pecuniary damages for the in- fliction of a wrong or the non-performance of a contract, or else to procure the payment of money due. Such a right was called, in the Xorman French of our early lawyers, a chose or thing in action^ whilst movable goods were denominated choses in posses- sion. Choses in action, though valuable rights, had not in early times the ordinary incident of property, namely, the capability of being transferred;* for, to permit a transfer of such a right was, the action under the statute of 1842, it is chattels unlawfully taken. Waterman v. necessary that the plaintiff should have the Matteson, 4 R. I. R. 539. right to immediate possession, as at common i A right of action for a tort is not assign- law ; 27 Miss. R. 198. able; Gardner v. Adams, 12 Wend. R. 297; The writ lies in Michigan and Illinois by Com. v. Tuqua, 3 Litt. R. 41 ; Comegys v. statute, for goods wrongfully taken or de- Vasse, 1 Peters's R. 12.3 ; People r. Tioga, 19 tained ; 2 Compiled Lists of Michigan Wend. R. 73 ; Oliver v. Walsh, 6 Gal. R. (1857), p. 1330; Statutes of Illinois (1858), 258; and this is true even after verdict ; i p. 226. Brooks v. Hanford, 15 Abbott's Pa. R. 342. In Iowa, if the plaintiff is not entitled to But a cause of action, to recover money present possession, he cannot prevail ; Ma- which plaintiff had been induced to pay to rienthal v. Shafer, 6 Clarke's R. 223 ; and defendant, by means of false representations if the possession of the defendant was right- made by the latter, is assignable : Byxbie v. ful at its inception, the plaintiff must make Wood, 24 N. Y. R. 607; and by a statute of a demand before bringing his action ; Gil- 1858 of the State of New York, the right of Christ V. Moore, 7 Clarke's R. 9. action which one has who has been induced In Rhode Island, the action of replevin is by fraud to execute a conveyance and part maintainable, by virtue of the statute "reg- with the possession of real estate, may be nlating proceedings in replevin," for goods assigned ; McMahon v. Allen, 34 Barb. R. and chattels unlawfully detained, though not 275. And see Weire v. Davenport, 11 Iowa unlawfully taken, as well as for goods and R. 49. OF THE SUBJECTS AND NATURE OF PERSONAL PROPERTY. 55 in the simplicity of the times, thought to be too great an encour- agement to litigation ;(i) and the attempt to make such a transfer involved the guilt of maintenance or the maintaining of another person in his suit. It was impossible, however, that this simple state of thinors should *long continue. Within the class of ^ . r-i choses in action was comprised a right of growing impor- ^ -' tance, namely, that of suing for money due, which right is all that constitutes a debt. That a debt should be incapable of transfer was obviously highly inconvenient in commercial transactions; and in early times the custom of merchants rendered debts se- cured by bills of exchange assignable by indorsement and deliv- ery* of the bills. But choses in action, not so secured, could only («■) 10 Rep. 48 a. The general rule is, that personal torts which die with the party and do not survive to personal representatives, are incapable of passing by assignment ; Comegys v. Vasse, 1 Peters's R. 193 ; North v. Turner, 9 Serg. 6 Raw. R. 244 ; Sommers v. Wild, 4 Id. 19; O'Donnell v. Seybert, 13 Id. 54; Free- man V. Newton, 3 E. D. Smith's R. 246; Grant v. Ludlow, 8 0. R (N. S.), 1 : and the converse has been held true ; Sears v. Con- over, 34 Barb. R. 330 ; Gould v. Gould, 36 Id. 270. In New York, it has been held that the right of a mother in the damages given by the statute of 1847, for the death of her .,80n, is capable of assignment ; Quin v. Moore, 15 N. Y. R. 432. But other choses in action may be assign- ed in equity ; Dix v. Cobb, 4 Mass. R. 511 ; Parker i;. Grout, 11 Id. 157, note; Wheeler #. Wheeler, 9 Cow. R 34; Eastman v. Wright, 6 Pick. R. 316; Welch v. Mande- ville, 1 Wheat. R. 2.'?6 ; Brackett v. Blake, 7 Mete. R. 335 ; Fletcher v. Prait, 7 Blackf. R. 522; Powell v. Powell, 10 Ala. R. 900; Wooden -y. Butler, 10 Miss. R. 716; Blierf. Pierce, 20 Vt. R. 25; 26 Maine R. 448; Merriweather v. Herran, 8 B. Mon. R. 162; 29 Maine R. 9 ; Kerr v. Day, 2 liar. R. 212 ; Anderson v. De Soer, 6 Gratt. R. 303 ; En- sign V. Kellogg, 4 Pick. R. 1 ; Champion v. Brewer, 6 Johns. Chan. R. 398 ; Lowry v. Tew, 3 Barbour Ch. R. 407; Mitchell v. Manufacturing Co., 2 Story's R. 660; Cal- kins r. Lockwood, 14 Conn. R. 226; Canna- day V. Shepard, 2 Jones's L. R. 224; and an oral transfer, with notice from the assignee to the debtor, has been held sufiBcient; Noyes V. Brown, 33 Vt. R. 431 ; the assignee takes subject to the equities of him who issued the security assigned ; Bush v. Lathrop, 22 N. Y. R. 535 ; Robert v. Carter, 24 How. Pr. R. 44; Faull V. Tinsman, 36 Pa. St. R. 108; Smith V. Rogers, 14 Ind. R. 224 ; Eldred v. Hazlett, 33 Pa. St. R. 307; Warner v. Whillaker, 6 Mich. R. 133; Cornish v. Bryan, 2 Stockt. R. 146 : Horstman v. Gerker, 49 Pa. St. R. 281. A contingent debt may be assigned in equity ; Crocker v. Whitney, 10 Mass. R. 316; and a judgment and execution ; Dunn V. Snell, 15 Mass. R. 481 ; Allen v. Holden, 9 Id. 133; Brown v. Maine Bk., 11 Id. 153 ; Pearson v. Talbot, 4 Litt. R. 435 ; Vanhouten v. Reilly, 6 Smedes & Marsh., R. 440; Faull V. Tinsman, 36 Pa. St. R. 108; McDonald v. McDonald, 5 Jones's Eq. R. 211. To make an assignment valid at law, that which is the subject of it must have an ex- istence actual or potential at the time of assignment ; Mitchell v. Winslow, 2 Story's R. 630. An interest created by a pledge of personal property can be assigned ; Russell t). Fillmore, 15 Vt. R. 130. The legal interest in a judgment is not assignable, either by statute or comuion law , Richardville v. Cummins, 5 Bluckf. R. 48. 56 INTRODUCTORY CHAPTER. be sued for by tlie original creditor, or the person who first had the right of action. In process of time, however, an indirect method of assignment was discovered, the assignee being em- powered to sue in the name of the assignor ; and in the reign of Henry VII, it was determined that a " chose in action may be assigned over for Lawful cause as a just debt, but not for main- tenance, and that where a man is indebted to me in £20, and another owes him £20 by bond, he may assign this bond and debt to me in satisfaction, and I may justify for suing it in the (j) Bro. Abr. Chose in Action, pi. 3, 15 Hen. VII, 2 ' The assignee of a chose in action, Has an equitable right, enforceable at law, in the assignor's name ; Dix v. Cobb, 4 Mass R. 511; Parker v. Grout, 11 Id. 157, note ; Wheeler v. Wheeler, 9 Cow. R. 34; East- man V. Wright, 6 Pick. R. 316 ; Welch v. Manderville, 1 Wheat. R. 236 ; Hendrick v. Glover, Geo. Decis. part 1, 63 ; Marcune v. Hereford, 8 Dana's R. 1 ; Dunklin v. Wil- kins, 5 Ala. R. 109 ; Rawson v. Jones, 1 Scam. R. 291 ; Van Houten v. Reily, 6 Smedes & Marsh. R. 440 ; Broughten v. Badgett, 1 Kelly's R. 75 ; Sims v. Radcliffe, 3 Rich. R. 287 ; Pollard v. Somerset, Mut. Fire Ins. Co., 42 Maine R. 221. But the assignee of a bond cannot, at common law, sue thereon in his own name ; Skinner v. Somers, 14 Mass. R. 107; Smock v. Taylor, Coxe's B. 177; Sheppard «. Stites, 2 Halst. R. 94 ; Sayre v. Lucas, 2 Stew. R. 259 ; Flanagan v. Camden Mutual Insurance Co., 1 Dutch. R. 506. The bearer of a negotiable promissory note may sue on it in his own name ; Mauran v. Lamb, 7 Cowen's R. 174 ; Pearce v. Austin, 4 Wharton's R. 489; Barbarin v Daniels, 7 Louis. Rep. 481 ; Denton v. Duplesis, 12 Id. 92 ; Hill v. Holmes, Id. 96 ; Story on Prom. Notes, 465; Rankin t). Woodworth, 2 Watt's R. 134: LeidytJ. Tammany, 9 Id. 353. If a negotiable note be assigned and de- livered, for a valuable consideration, without indorsement, the title passes, and the assignee may recover in the name of the payee ; Jones If. Willett, 3 Mass R. 304. But a certificate of deposit payable to the depositor, or order, in currency, is not a negotiable instrument, and the indorsee thereof cannot maintain an action upon it in his own name ; Loudon, Ac. Soc. V. Hagerstown, &c. Bk., 36 Pa. St. R. 498. And " the holder of bonds issued by a cor- poration, payable to bearer, may maintain an action on them in his own name. Such bonds are not strictly negotiable under the law merchant, as are promissory notes and bills of exchange. They are, however, in- struments of a peculiar character, and being expressly designed to be passed from hand to hand, and by common usage actually so transferred, are capable of passing by deliv- ery so as to enable the holder to maintain an action on them in his own name. Posses- sion is prima facie evidence of ownership ;" Carr v. Le Fevre, 27 Pa. St. R. 418. And see also on the same subject, Gregory v. Do- zier, 6 Jones's Law R. 4 ; Morris Canal Co. z;. Fisher, 1 Stockt. R. 667; McCoy u. The County, 7 Am. L. Reg. 193; Mercer Co. v. Hacket, 1 Wallace's U. S. R. 83; Gelpcke V. Dubuque, Id. 176 ; Meyer v. Muscatine, Id. 384; Murray v. Lardner, 2 Id. 110* Co. of Beaver v. Armstrong, 8 Pa. St. R. 63. Where bonds were issued by a railroad company in blank, it was held by the Supreme Court of the United States to be the intention of the company to make the bonds negotia- ble and payable to the holder as bearer, and that the holder might fill up the blank with his own name, or make them payable to him- self or bearer, or order. White v. Vt. ) In like manner (a) Co. Litt. 6 a. (fj) Harrington v. Price, 3 Barn. & Adol. 170, Eng. C. L. R., vol. 23 ; Philips v. RobinsoU; 4 Bing. 106, Eng. C. L. R,, vol. 13, S. C. 12 Moore, 308. 62 OF CHOSES IN POSSESSION. a devise of lands by will entitles the devisee to the possession of the deeds; and if a tenant in fee simple shoulci die intestate, the title-deeds of his lands will descend along with them to his heir at law.(c) In former times, when warranty was usually made on the conveyance of lands,((/) the rule was that the feoffor should retain all deeds containing warranties made to himself or to those whom he claimed, and also all such deeds as were material for the main- tenance of the title to the land.(e) But if the feoffment was made without any warranty, the feoffee was entitled to the whole of the deeds; for the feoffor could receive no benefit by keeping them nor sustain any damage by delivering them.(/) "Warranties have now fallen into disuse; but the principle of the rule above stated still applies when the grantor has any other lands to which the deeds relate, or retains any legal interest in the lands conveyed; for in either of these cases he has still a right to retain the deeds.(^) And if the grantor should retain merely an equitable right to re- deem the lands, as in the case of a mortgage in fee simple, it has been said that this equitable right is a sufficient interest in the lands to authorize him to. withhold the deeds, unless they are expressly granted to the mortgagee,(A) It is very questionable, r*ni ^*^'^^'<^^'^'*? whether a legal right ought to be attached to an interest *merely equitable. And the doctrine last men- tioned is opposed by more recent decisions in another court.(zy ((-) Wentworth's Office of an Executor, 14th ed. 153 ; Williams on Executors, pt. 2, book 2, c. 3, 8. 3. {d) See Principles of the Law of Real Property, 344, 1st ed. ; 346, 2d ed. ; 365, 4th ed. ; 376, 5th ed. ; 399, 6th ed. («) Buckhurst's Case, 1 Rep. 1 b. (/) 1 Rep. 1 a. (g) Bro. Abr. tit. Charters de Terre, pi. 53 ; Yea v. Field, 2 T. Rep. 708 ; see however Sagd. Vend. & Pur. 367, 13th ed. ; 2 Prest. Conv. 466. (k) Davies v. Vernon, 6 Q. B., 443, 447; Eng. C. L. R., vol. 51. (t) Goode V. Burton, 1 Exch. Rep. 189 ; Newton v. Beck, 3 H. A N. 220. ^ Since the recording acts, which are in case only,"' it was said by McKean, C. J., universal operation in the American States, "can the mortgagee be affected by suffering the different questions which have arisen in the title-deeds to remain in the hands of the England as to the possession of title-deeds mortgagor, and that is, where, after the exe- have become coruparatively unimportant, as cution of the mortgage, and before the same the recording is, in all cases, for the purposes is recorded, the mortgagor, on the strength of evidence, and of notice to subsequent pur- of the title papers in his hands, borrows chasers, made of the same validity as the money on a second mortgage. If this second production, or possession of the title papers : loan was made without knowledge of the first Wilt r. Franklin, 1 Bin. R. 522. "In one incumbrance, and before the first mortgage OF CHATTELS WHICH DESCEND TO THE HEIR. 63 If a conveyance of lands should be made by way of use, thus, if lands should be granted to A. and his heirs, to the use of B. and his heirs, it is said that the title-deeds of the land will belong to A., the grantee; because, although the Statute of Uses(j) conveys the legal estate in the lands from A, to B., it does not affect the title-deeds, which must consequently still remain vested in A.{k) But this doctrine has been justly questioned, on the ground that the legislative conveyance from A. to B., eflected by the Statute of Uses, ought to be at least as powerful as the com- mon law conveyance of the lands to A. ; and if the latter con- veyance can carry with it the deeds relating to the land, the former conveyance should be considered as powerful enough to do the same.(/) The tenant of an estate in fee simple in lands possesses the highest interest which the law of England allows to any subject: and such a tenant possesses also an absolute property in the title- deeds, which he may destroy at his pleasure, or sell for the value of the parchment.(w) But if the lands to which deeds relate should be settled on any person for life or in tail, a qualified ownership will arise with respect to the deeds, different in its nature from that simple property which is usually held in chat- tels personal. As the lands are now held for a limited estate, so a limited interest in the deeds belongs to the tenant. The tenant for life or in tail, when in possession of the lands, being the O) 27 Hen. VIII, c. 10. (^■) 1 Sand. Uses, 4th ed. 119 ; 5th ed. 117. (I) Sugd. Vend. & Pur. 366, 13th ed. ; Co. Litt. 6 a, n. (4). (m) Cro. Eliz, 496. was put into the recorder's office, then I their date, if recorded within sixty days ; but should apprehend the first mortgage should it is presumed that such an instrument must be postponed." Evans v. Jones, 1 Yeates appear on its face to be a purchase money R. 172. These remarks were made under mortgage, and it may be doubted if the lien the Pennsylvania Act of 1715, which gave of such a mortgage would be valid before the the mortgagee six months within which to date of its record, as against a subsequent record his deed, and if correct, would apply bona ^de lien creditor or purchaser, having in Pennsylvania to the case of vendees, who no notice of it, if the deed of conveyance have also six months. has been recorded, or is exhibited to him. Under the present acts of A.ssembly of that acknowledging in its body and in the receipt State, a mortgage, unless to secure purchase- at its foot, payment of the consideration- money, is not a lien until renorded ; purchase- money. See Ilendriekson's Ap., 24 Pa. St. money mortgages constitute valid liens from R. 366 j Britton's Ap. 45 Id. 172. 64 OF CIIOSES IN POSSESSION. freeholder for the time being, is entitled also to the possession of j-^ the *deeds;(w)^ whereas the tenant for a mere term of -" years, of whatever length, not having the freehold or feu- dal possession of the lands, has no right to deeds which relate to such freehold ;(o) although deeds relating only to the term be- long to such a tenant, and will pass, without any express grant, to the assignee of the term.(p) The tenant for life or in tail in possession, though entitled to the possession or custody of the deeds which relate to the inheritance, has no right to injure or part with them:('7) he has an interest in the title-deeds corre- spondent only to his estate in the lands ; and if he should part with the deeds, even for a valuable consideration, the remainder- man, on coming into possession of the lands, wdll nevertheless be entitled to the possession of the deeds, just as if the tenant for life or in tail had kept them in his own custody.(r) Heir-looms, strictly so called, are now very seldom to be met with. They may be defined to be such personal chattels as go, by force of a special custom, to the heir, along with the inheritance, and not to the executor or administrator of the last owner.(.s) The owner of an heir-loom cannot by his will bequeath the heir- loom, if he leave the land to descend to his heir ; for in such a case the force of the custom will prevail over the bequest, which, not coming into operation until after the decease of the owner, is (ii) Ford V. Peering, 1 Ves. Jr. 76 ; Strode v. Blackburne, 3 Ves. 225; Garner v. Han- nyngton, 22 Beav. 627; Allwood tJ. Heywood, Exch. 11 W. R 291. (o) Churchill v. Small, 8 Ves. 32.3 ; Harper v. Faulder, 4 Mad. 129, 138 ; Wiseman v. Westland, 1 You. & Jarv. 117; Hothan v. Somerville, 5 Beav. 360. (;;) Hooper v. Ramsbottom, 6 Taunt. 12, Eng. C. L. R., vol. 1. (q) Bro. Abr. tit. Charters de Terre, pi. 36. As to production, see Davis v. Earl of' Dysart, 20 Beav. 405. (r) Davies v. Vernon, 6 Q. B. 443, Eng. C. L. R., vol. 5; Easton v. London, Exch. 12, W. R. 53. {s) See Co. Litt. 18 b. ' The tenant for life is prirtia facie en- Shaw, 12 Price's Exchequer R., p. 163 ; All- titled to the possession of the title-deeds, wood v. Heywood ; 1 Hurlst & Colt, R. 745. and although in a proper case the court will The right to title-deeds goes with the land ; grant an inspection of them to the remainder- Lord Buckhurst"s Case, 1 Co. Rep. 2 ; At- man, the precise object of the motion must kinson v. Baker, 4 T. R. 229 ; and they are be set forth, and the court will exert a pa- so completely part of the realty, that at com- ternal authority to see that it is for no im- mon law no larceny could be committed of provident or improper purpose ; Shaw v. them ; 3 Inst. 109. or CHATTELS WHICH DESCEND TO THE HEIR. 65 too late to supersede the custom.(^) According to some authori- ties heir-looms *cousist only of bulky articles, such as tables and benches fixed to the freehold -.{u) but such articles ^*^^^ would more properly fall within the class of fixtures, of which we shall next speak. The ancient jewels of the crown are heir- looms.(y) And if a nobleman, knight or esquire be buried in a church, and his coat, armor, or other ensigns of honor belonging to his degree be set up, or if a tombstone be erected to his memory, his heirs may maintain an action against any person who may take or deface them.(x) The boxes in which the title- deeds of land are kept are also in the nature of heir-looms, and will belong to the heir or devisee of the lands ; for such boxes "have their very creation to be the houses or habitations of deeds ;"(?/) and accordingly a chest made for other uses Mdll be- long to the executor or administrator of the deceased, although title-deeds should happen to be found in it. In popular language the term " heir-loom" is generally applied to plate, pictures, or articles of property which have been assigned by deed of settle- ment or bequeathed by will to trustees, in trust to permit the same to be used and enjoyed by the persons for the time being in possession, under the settlement or will, of the mansion-house in which the articles may be placed. Of this kind of settlement more will be said hereafter. Fixtures are such movable articles or chattels personal as are fixed to the ground or soil, either directly or indirectly, by being attached to a house or other building. The ancient common law, regarding land as of far more consequence than any chattel which could be fixed to it, always considered everything attached to the land as part of the land itself, the maxim being quicquid plantatur solo, solo cedit.{z) *Hence it followed that houses themselves, which consist of aggregates of chattels per- ■- -' sonal (namely, timber and bricks) fixed to the land, were regarded (t) See Co. Litt. 185 b. (u) Spelman's Glossary, voce Heir-Loom. See Williams onExecutors, pt. 2, bk. 2, ch. 2, s. 3. (v) Co. Litt. 18 b. (x) Co. Litt. 18 b. (y) Wentworth's Office of an Executor, 157, 14th ed. (2) See 4 Rep. 64 a ; 1 Lord Raymond, 738 ; Mackintosh v. Trotter, 3 Mee. k Wels. 184, 186 ; Williams on Executors, pt. 2, bk. 2, ch. 3, s. 2. 5 66 OF CUOSES IN POSSESSION. as land, and passed by a conveyance of the land without the ne- cessity of express mention ; and this is the case at the present day. (a)' So now, a conveyance of a house or other building, whether absolutely or by way of mortgage, will comprise all or- (a) See Principles of the Law of Real Property, 13. 1 And in the United States, generally, permanent machinery, such as the main wheel and its gearing, an engine attached to a building, a cotton gin fixed to its place, will vest in the grantee of the real estate to which they belong. It is not necessary that the machinery shall be actually affixed to the realty in order to pass with it, where it is of course, to have it oc- casionally detached, as, for instance, a set of rolls in an iron rolling mill, temporarily de- tached in order to insert others ; Voorhis v. Freeman, 2 Wat. & Serg. R. 719 ; Powell v. Manufacturing Co. 3 Mason's R. 459 ; Far- rar v. Stackpole, 6 Greenleaf R. 154; Sparks v. State Bk. 7 Blackf. R. 469 ; Brat- ton V. Clawson, 2 Strobh. R. 478 ; DegrafFen- reid v. Scruggs, 4 Uumph. R. 431 ; English V. Foote, 8 Smed. & Marsh. R. 444 ; Trull v. Fuller, 28 Maine R. 545 ; Corliss v. McLag- in, 29 Id. 115; Preston v. Briggs, 16 Vt. R. 124 ; Miller v. Plumb, 6 Cow. R. 665 ; Har- lan V. Harlan, 20 Pa. St. R. 303 ; Parsons v. Gopeland, 23 Maine R. 537 ; Baker v. Davis, 19 N. H. R. 325. The same rule will hold in the case of a mortgage, and such articles will be bound by it ; Union Bk. v. Emerson, 15 Mass. R. 159 ; Voorhis v. Freeman, 2 Wat. & Serg. R. 116 ; Despatch Line of Packets v. Bella- my, 12 N. H. R. 205 ; Sparks v. State Bk., 7 Blackf. R. 469 ; Day v. Perkins, 2 Sandf. Ch. R. 369 ; Winslow v. Merchants' Ins. Co. 4 Met. R. 806 ; Butler v. Page, 7 Id. 40; Sands v. Pfeiffer, 10 Cal. R. 258 ; Haskin v. Woodward, 45 Pa. St. R. 42. And even though put up after the mortgage was given. Roberts v. Dauphin Bank, 19 Pa. St. R. 71. The doctrine has been carried to its farthest extent in Pennsylvania, where all machinery necessary to constitute a manufactory passes with the land on which it stands ; but it must have been once affixed as machinery, in order to become a constituent element of the realty ; Johnson v. Mehafiey, 43 Pa. St. R. 308. The criterion is not the permanent fastening to the freehold ; Harlan v. Harlan, 15 Pa. St. R. 513; Heaton v. Findlay, 12 Id. 304; Pyle v. Pennock, 2 Wat. k Serg. R. 390; Voorhis v. Freeman, 2 Id. 116 ; Chris- tian V. Dripps, 28 Pa. St. R. 271 ; Overton v. Williston, 31 Id. 155. But in New York, under the Revised Stat- utes, the rule is that nothing personal will pass as a fixture unless it be permanently fixed to the freehold. And the machinery in a woollen factory is personal property. Wal- ker V. Sherman, 20 Wend. R. 636 ; Kelsey V. Durkee, 33 Barb. R. 410; Murdock v. Gif- ford, 18 N. Y. R. 28. It is, however, the permanent and habitual connection, and not the manner of fastening, which determines the question ; Laflin v. Griffiths, 35 Barb. R. 58 ; Tabor v. Robinson, 36 Id. 483. And this would seem to be the rule in Connecticut and Massachusetts, where ma- chinery which can be removed without injury to the building, is personal property as re- spects creditors and purchasers ; Swift v. Thomson, 9 Conn. R. 63 ; Gale v. Ward, 14 Mass. R. 352. And in Vermont, Fullam v. Stearns. 30 Vt. R. 443 ; Hill v. Wentworth, 28 Id. 428. In Maine, it has been held that a dwelling- house partially erected on land of another, under a parol agreement to purchase, but left unfinished and not underpinned, re- mains the personal property of the builder ; Pullen V. Bell, 40 Maine R. 314. And see, Fuller V. Heath, 39 Maine R. 437 ; Preston V. Briggs, 16 Vt. R. 124; Stockwell v. Marks, 5 Shepley's R. 455 ; Beers v. St. John, 16 Conn. R. 522; Shepard v. Spauld- ing, 4 Metcalfe's R. 416; The State v. El- liott, UN. Hamp. R. 340 ; White v. Arndt, 1 Whart. R. 91 ; Bartlett v. Wood, 32 Vt. R. 372 ; Murdock v. Harris, 20 Barb. R. 407; Richardson «;. Gopeland, 6 Gray's R. 536. OF CHATTELS WHICH DESCEND TO THE HEIR. 67 dinary fixtures, such as stoves, grates, shelves, locks, &c., without any express mention,.(6) unless an intention to withhold the fix- tures can be gathered from the context. (e) So on the decease of a tenant in fee simple, the devisee of a house, or the heir at law in case of intestacy, will be entitled generally to the fixtures set up in it.((/) The ancient rule respecting fixtures has been greatly relaxed in favor of tenants for terms of years, who are now permitted to renlove articles set up by them for the purposes of trade or of ornament, or domestic convenience, (e) provided they remove them before the expiration of their tenancy.(// But the old rule still prevails with regard to agricultural fixtures, which, though set up by the tenant, become, by being fixed to the soil, the property of the landlord,(^f/)^ unless tliey are put up (4) Colegrave v. Dias Santos, 2 Barn. & Cress. 76, E. C. L. R. vol. 9 ; S. C. 3 Dowl. A Ry. 255 ; Longstaff v. Meagoe, 2 Ad. & Ell. 167, E. C. L. R. vol. 29; Hitchman v. Walton, 4 Mee. & Wels. 409 ; Ex parte Barclay, 5 De G., M. & G. 403 ; Mather v. Eraser, 2 Kay & John, 536 ; Williams v. Evans, 23 Beav. 239 ; Walmesly v. Milne, 7 C. B. N. S. 115, E. C. L. R. vol. 97; Metropolitan Counties, &e., Society v. Brown, 26 Beav. 454. {c) Hare v. Horton, 5 Barn. & Adol. 715, E. C. L. R. vol. 27. {d) Shep. Touch. 470. (f) Grymes v. Boweren, 6 Bing. 437, E. C. L. R. vol. 19. (/) Lyde v. Russell, 1 Barn. & Adol. 394, E. C. L. R. vol. 20; Leader v. Homewood, 5 C. B. N. S. 546, E. C. L. R. vol. 94. (g) Elwes«. Maw, 3 East, 38. 1 Some of the American cases to this point St. R. 522 ; Wall v. Hinds, 4 Gray's R. are : 256 ; Montague v. Dent, 1 Rich. Law R. Gaffield v. Hapgood, 17 Pick. R. 192; Ex 135 ; Ombony v. Jones, 21 Barb. R. 520. parte Quincy, 1 Atk. R. 477 ; Holmes v. 2 This doctrine has not been directly over- Tremper, 20 Johns. R. 29 ; Whiting v. ruled in the United States, but has been Braston, 4 Pick. R. 310; Lelane w. Gasset, strongly questioned. Whenever the question 17 Vt. R. 463 ; Cook v. Champlain Company, has been before the courts, they have leaned 1 Denio R. 91 ; .Van Ness v. Pacard, 2 in favor of the agricultural tenant, though Peters's R. 153 ; Russell v. Richards, 1 Fair- deciding as for a manufacturing tenant ; Van field R. 429 ; Tapley v. Smith, 18 Maine R. Ness v. Pacard, 2 Pet. R. 137 ; Whiting v. 12; Cresson v. Stout, 17 Johns. R. 116; Braston, 4 Pick. R. 310; Holme* u. Trem- Tobias v. Frances, 3 Vt. R. 425 : Taffe v. per, 20 Johns. R. 29. Warnick, 3 Blackf. Ind. R. Ill; Reynolds Farm fences, however, belong to the realty ; V. Shutter, 5 Cowen's R. 323; Raymond v. Mott v. Palmer, 1 Comst. R. 564; Walker White, 7 Id. 318 ; Wetherbee v. Foster, 5 v. Sherman, 20 Wend. R. 646. Vt. R. 136; Taylor v. Townsend, 8 Mass. The same policy of encouraging agricul- R. 411; Blood v. Richardson, 2 Kent Com- tural improvements, will not permit the out- ment., p. 404, note; White's Appeal, 10 Pa. going tenant to remove manure which has St. R. 253 ; Case of the Olympic Theatre, 2 accumulated during the term ; Lassell v. Br. 285; Ross's Appeal, 9 Pa. St. R. 494; Reed, 5 Greenieaf.'s R. 222; Middiebrook White V. Arndt, 1 Wh. R. 91; Gray v. v. Corwin, 15 Wend. R. 169; Daniels v. Holdship, 17 Serg. & Raw. R. 415; 1 Mis- Pond, 21 Pick. R. 367; Lewis v. Jones, 17 Bouri R. 508 ; Vaugh v. Haldemun, 33 Pa. Pa. St. R. 202 ; Kitteridge v. Rhodes, 3 N. 68 OF CHOSES IN POSSESSION. with the consent in writing of the landlord for the time being, in r*i r-i "^'^^i<^l^ ^^se it is provided by a recent act(/i) *that they shall ^ -'be the property of the tenant, and shall be removable by him on giving to the landlord or his agent one month's previous notice in writing of his intention so to do, subject to the land- lord's right to purchase the same by valuation in the manner provided by the act. This act extends to farm buildings, either detached or otherwise, and to engines and machinery, either for agricultural purposes or for the purposes of trade and agriculture, although built in or permanently fixed in the soil, so as the tenant making any such removal do not in anywise injure the land or buildings belonging to the landlord, or otherwise do put the same in like plight and condition, or as good plight and condition, as the same were in before the erection of anything so removed. A relaxation of the old rule has also been made in favor of the ex- ecutors of a tenant for life, who appear to be allowed to remove fixtures set up by their testator for the purposes of trade or of or- nament or domestic convenience. (f) But the rule of the common law still retains much of its force as between the devisee or heir of a tenant in fee simple and his executor or administrator. Thus a tenant for years may remove ornamental chimney-pieces set up by him during his tenancy ; (J) but if erected by a tenant in fee sim- ple, they will pass with the house to the devisee or heir.(A-) So machinery employed in carrying on iron works or collieries may be removed by a lessee for years, if erected by him; but if erected b}'- a tenant in fee simple, such machinery, even though removable without injury to the freehold, will belong to the heir or the de- visee of the land.(^) However it seems that pier glasses, fixed by nails, and not let into panels, and hangings fastened up for orua- (/t) Sta^. 14 & 15 Vict. 25, s. 3. (i) Lawton v. Lawton, 3 Atk. 14. {j) Bishop V. Elliott, Ex. Ch. 1 Jur. N. S. 962 ; 24 Law J. Exch. 229 ; 11 Ex. Kep. 113. (X.) Dudley V. Warde, Amb. 113. {I) Fisher v. Dixon, 12 CI. & Fin. 312. H. R. 508 j Parsons V. Campbell, 11 Conn, shrubs, as personal property ; Miller i'. Baker, R. 525. 1 Met. R. 27 ; King v. Wilcomb, 7 Barb. The outgoing tenant of -a nursery, has the Sup. C. R. 263. right to take up and carry away trees and OF CHATTELS WHICH DESCEND TO THE HEIR. 69 ment, will now belong to the executor or *administrator r-^,~.p,~, of a tenant in fee simple as part of his personal e8tate.(m)^ ^ -^ (m) Cayev. Cave, 2 Vern. 508 ; Squire v. Mayor, 2 Eq. Ca. Abr. 430, pi. 7; S. C. 2 Freem. 249. 1 In New York, by the Rev. Stat., the ex- ecutor is put on the same footing as the ten- ant, as to the right to fixtures^ House v. House, 10 Paige's R. 163. The law of fixtures has, in derogation of the original rule of the common law, which subjected everything aflBxed to the freehold to the law governing the freehold, made the right of removing fixtures the general rule instead of the exception. 2 Kent's Comment, p. 343. In the leading case of Elwes v. Mawe, 3 East's R. 38, Lord Ellenborough divided the questions respecting the right to what are ordinarily called fixtures into three classes — 1st, those arising between different descriptions of representatives of the same owner of the inheritance, viz., the heir and executor, in which case the rule obtains with most rigor in favor of the inheritance, and against the right to disannex therefrom, and to consider as a personal chattel, anything which has been affixed thereto. 2d, between the executors of tenant for life or in tail, and the remainderman or reversioner, in which case the right to fixtures is considered more favorably for the executor. 3d, between landlord and tenant, in which in favor of trade and to encourage industry, the greatest latitude and indulgence has been allowed in favor of the claim of the tenant, to have par- ticular articles considered as personal chat- tels, as against the owner of the freehold, al- though in the case last referred to, the rule laid down was held to apply as between land- lord and tenant, only to the case of fixtures set up for trading purposes, and not to extend to agricultural ones ; the tendency ha.s been both in this country and in England to ex- tend it to the latter also, and to treat the occupation of agriculture as a trade ; Law- ten V. Lawten, 3 Atk. R. 113; Dudley v. Warde, Amb. R. 13 ; in which last case Lord Hardwicke appears to have considered the privilege in question as belonging to fixtures, by means of which the owner, a tenant for life, carried on a species of trade, by which he rendered the produce of his own land available to his own profit. See also, Penton V. Robart, 2 East R. 91 ; Mansborough v. Maton, 4 A. & E. R. 884 ; R. v. Ottey, 1 B. & Aid. R. 161 ; Whiting v. Braston, 4 Pick. Rep. 310 ; Holmes v. Tremper, 20 Johns. Rep. 29; Waterfall v. Penistone, 37 Eng. L. & Eq. R. 156 ; McGreary v. Osborne, 9 Cal. R. 119; Van Ness v. Pacard, 2 Pet. U. S. R. 137. This last case was a question between landlord and tenant. The defendant, the tenant, had erected a wooden dwelling- house, two stories high in front, with a shed of one story, a cellar of stone or brick foun- dation, and a brick chimney. The defendant and his family dwelt in the house from its erection until near the expiration of the lease, when he took the same down and re- moved all the materials. The defendant was a carpenter, and he gave evidence that upon obtaining the lease he erected the building above mentioned, with a view to carry on the business of a dairyman, and for the resi- dence of his family and servants engaged in his said business ; and that the cellar, in which there was a spring, was made and ex- clusively used for a milk-cellar, in which the utensils of his said business were kept, and scalded, and washed, and used ; and that feed was kept in the upper part of the house, which was also occupied as a dwelling for his family. The defendant also had his tools and apprentices in the house, and carpenter work was done there. He had also built a stable for his cows, of plank and timber fixed upon posts fastened into the ground ; which stable he removed with the house, be- fore the expiration of his lease. It was held, that he had a right to remove these struc- tures, as they had been erected for the ac- commodation and beneficial operation of trade. The strict rule as to fixtures which applies between heir and executor, also applies as between vendor and vendee, and mortgagor and mortgagee ; Winslow v. Merchants' In- surance Co., 4 Metcalf R. 306; Preston v. Briggs, 16 Vermont R. 124 ; Miller v. Plumb, 70 OF CHOSES IN POSSESSION. Where fixtures are demised to a tenant along with the house, mill or other l)uilding in which they may happen to he, the prop- erty in the fixtures still remains in the landlord, suhject to the tenant's right to the possession and use of them during his term;(?z) and if they should be severed from the building by the tenant or any other person, or should be separated by accident, the landlord will acquire an immediate right to the possession of them.(o) In this respect they are subject to the same rules as timber, which, as we shall see, is equally a part of the inheritance until severed, and when cut becomes the personal property of the owner of the fee. Fixtures, which would descend with the house or building to the heir of the owner of the fee on intestacy, are not in fact his goods and chattels properly so called. (2>) Chattels vegetable consist, as their name imports, of movable articles of a vegetable origin, such as timber, underwood, corn, and fruit. All these articles, so long as they remain unsevered from the land, are for many purjDoses considered as part of it; and they will pass by a conveyance or devise of the land without express mention. (5') If, however, the trees should be expressly excepted out of the conveyance, they will remain the personal property of the grantor, although severed only in contemplation of law ;(r) and in like manner the trees alone may be granted by a tenant in fee simple, and will then form the personal property f^-,^,-, of the grantee, even *before they are cut down.(s) But if L -^ a tenant of lands in fee simple should die without having (n) Boydell v. McMichael, 1 Cro. Mee. & Rose. 177 ; Hitehman v. Walton, 4 Mee. . Campbell, 11 Conn. R. 525 ; Goodrich outgoing tenant of a farm, has a right to take v. Jones, 2 Hill's R. 142 ; Lewis v. Jones, 9 away the manure, unless the landlord would Penna. Leg. Int. 18; Wain v. O'Connor, Id., pay him its value ; Roberts v. Barker, 1 67 ; Barrington v. Justice, 4 Id. 289 ; Lewis Crompt & Meeson R. 809 ; Gibbons on Di- v. Jones, 17 Pa. St. R. 262 ; Plumer v. Plu- lapidations, 76. But in this country, in gev- mer, 10 Foster's R. 558. In New Jersey, it eral instances it has been held, that manure has been regarded as personal property until made on a farm is not only an appurtenance spread upon the ground ; Ruckman v. Out- of the realty, which passed with a convey- water, 4 Dutch. R. 581. ance of the land from the grantor to the ^ it jg g, doctrine of the common law, grantee, but that it is so inseparably incident that where a tenant sows the land, with the to the freehold, that it forms an exception to expectation of gathering the harvests, no sud- the usual rule as to fixtures, and cannot be den and unlooked for termination of his es- removed by an outgoing tenant at the end of tate, either by the act of God or the act of his term ; Lassell v. Reed, 6 Greenl. R. 222 ; the lessor, shall deprive him, or his represen- Middlebrook v. Corwin, 15 Wendell's R. tatives, of the fruit of his labor ; but if the 160 ; Daniels v. Pond, 21 Pick. R. 367 ; Kit- tenant's interest is to determine at a fixed teridge v. Wood, 3 N. Ilamp. R. 503 ; Par- time, or if he by his own act has brought 72 OF CHOSES IN POSSESSION. rack rent, whose tenancies may determine by the death or cesser of the estate of tenants for life, or for any other uncertain interest, his lease to a conclusion, he cannot claim the profits, for it is by his own folly that he has sowed that which he could not reap. This doctrine of the emblements, as it is called, is pretty generally received in the United States, it having been held, that where the lease is to expire at a fixed time, or is termi- nated by the act of the lessee, he is not enti- tled to the emblements ; Hawkins v. Skegg, 10 Hump. R. 31 ; Harris v. Carson, 7 Leigh's R. 6.32 ; Debow v. Colfax, 5 Halst. R. 128 ; Kitteridge v. Woods, .3 N. H. R. 504 ; Whit- marsh V. Cutting, 10 Johns. R. 360 ; Bain v. Clark, Id. 424. On the other hand, where the estate is of an uncertain termination, and it is suddenly concluded by the act of God or that of the lessor, the lessee or his legal representatives, may claim the emble- ments ; Comfort v. Duncan, 1 Miles' R. 229 ; Davis V. Thompson, 13 Maine R. 209 : Sher- burne V. Jones, 20 Id. 70; Davis v. Brock- enbank, 9 N. H. R. 73 ; Debow v. Colfax, 5 Halst. R. 128 ; Kitteridge !>. Woods, 3 N. H. R. 504 ; Rising et al. v. Stannard, 17 Mass. R. 287; Stewart v. Doughty et als., 9 Johns. R. 108 ; Weem's Exec. v. Bryan et ux., 21 Ala. R. 303 ; Bennett v. Bennett, 34 Ala. R. 53. And in several of the States there are statutory provisions on this subject ; Free- man V. Tompkins, 1 Strobh. Eq. R. 53 ; Gage V. Rogers, Id. 370 ; Thompson v. Thompson, 6 Munf. R. 514 ; Green v. Cut- wright, Wright's R. 738. In Pennsylvania, New Jersey, and Delaware, the local custom which prevails in certain parts of England, of allowing all tenants a way going crop, has been adopted as the law of those States. Un- der it, the tenant is entitled to his "way going crop,'' even though his estate may have been limited to expire at a fixed time, as, for example, at the end of one year; Demi v. Bossier, 1 Penna. R. 224 ; Stultz v. Dickey, 5 Bin. R. 285 ; Carson v. Blazer, 2 Id. 475 ; Briggs et. als. v. Brown, 2 Serg. k, Raw. R. 14 ; Rank v. Rank, 5 Pa. St. R. 213 ; Craig V. Dale, 1 Wat. & Serg. R. 509 ; Forsythe v. Price, 8 Wat. R. 282 ; Iddings v. Nagle, 2 Wat. & Serg. R. 22; Comfort v. Duncan, 1 Miles' R. 229 ; Deaver v. Rice, 4 Dev. & Bat. R. 431 ; Diffendorfer v. Jones, eit. 5 Bin. R. 289 ; Van Doren v. Everitt, 2 South. R. 460; Templeman v. Biddle, 1 Harring. R. 622 ; Borrell v. Dewart, 37 Pa. St. R. 134 ; the principle of which decisions may be gath- ered from the words of C. J. Tilghman, in the case of Shultz v. Dickey, where he says that " In the nature of the thing, it is reasonable, that where a lease commences in the spring of one year, and ends in the spring of another, the tenant should have the crop of winter grain sown by him the autumn be- fore the lease expired, otherwise he pays for the land one whole year without having the benefit of a winter crop." But the "way going crop," is the crop of wheat which is sown in the autumn and reaped the following summer, and never that crop of wheat which is sown in the spring of the year ; Demi v. Bossier, 1 Pa. R. 224 ; Howell v. Schenck, 4 Zabr. 89. But the right of the tenant to his "way going crop," or to his emblements, may be defeated by a sale of the premises under a judgment or mortgage against his landlord, the lien of which is anterior to the lease ; Pitts V. Hendrix, 6 Geo. R. 452 ; Gillett v. Balcom, 6 Barb. S. R. 370 ; Jones v. Thom- as, 8 Blackf. R. 428 ; Shepard v. Philbrick, 2 Denio's R. 174; Lane v. King, 8 Wend. R. 584 ; Crews v. Pendleton, 1 Leigh's R. 297 ; King v. Fowler, 14 Pick. R. 238 ; How- ell V. Schenck, 4 Zabr. 89 ; but see to the contrary, Cassily v. Rhodes, 12 0. R. 88, which decides that a lessee is entitled to the emblements as against a purchaser of lands sold under a decree of foreclosure ; Houts v. Showalter, 10 0. R. (N. S.) 124 ; and see also Miller v. Clement, 40 Pa. St. R. 484 ; and Bittinger v. Baker, 29 Pa. St. R. 66. over- ruling Sallade v. James, 6 Pa. St. R. 144 ; Grofi" V. Levan, 16 Id. 179. But it has been held that where lands are devised, the growing crops on the land will go to the devisee, and not to the executor, unless a contrary inten- tion is expressed in the will ; Budd v. Hiler, 3 Dutch. R. 43 ; Shafner v. Shafner, 5 Sneed'sR. 94. The doctrine of emblements does not apply OF CHATTELS WHICH DESCEND TO THE HEIR. 73 are now provided for by a recent enactment, giving tlie tenants at rack rent a riglit to continue to hold until tlie expiration of the current year of their tenancy.(6) *When lands are let to a tenant for years or for life, if [-^-.q-. no exception is made of the timber, the property in the timber will still remain in the owner of the inheritance, subject to the tenant's right to have the mast and fruit growing upon it, and the loppings for fuel, and the benefit of the shade for his cattle.(c) Accordingly all fruit which may be plucked, or bushes or trees, not being timber, which may be cut or blown down, will belong to the tenant ;(<;/) but timber trees, which may be cut or blown down, will immediately become the property of the owner of the first estate of inheritance in the land, whether in fee simple or in tail.(e) Timber trees are oak, ash, and elm in all places; and in some particular parts of the country, by local custom, where other trees are generally used for building, they are for that reason con- sidered as timber.(/) But if the tenant should be a tenant without impeachment of waste {sine imjyetitione vasti), timber cut down by him in a husbandlike manner will become his own property when actually severed,(^^) but not before ;(A) for the words "with- out impeachment of waste" imply a release of all demands in re- spect of any waste which may be committed.(i) If, however, the words should be merely loithout being impleaded for waste, the prop- (h) Stat. 14 and 15 Vict. c. 25, s. 1. See Principles of the Law of Real Property, p. 25, .3d and 4th eds. ; 27, 5th and 6th eds. (c) Lilford's Case, 11 Rep. 48 b. {(l) Channon v. Patch, 5 Barn. & Cress. 897, E. C. L. R., vol. 11 ; S. C. 8 Dow. & Ry. 651; Berriman w. Peacock, 9 Ring. 384, E. C. L. R., vol. 23; S. C. Moo. & Scott, 524; Pidgley v Rawling, 2 Coll. 275. («) Herlakenden's Case, 4 Rep. 63 a; Whitfield v. Bewitt, 2 P. Wms. 240 ; 3 P. Wms. 268 ; Lushiiigton v. Boldero, 15 Beav. 1. (/) 2 Black. Com. 281. (g) Lewis JJowels' Case, 11 Rep. 82 b. See Principles of the Law of Real Property, 23, 2d ed. ; 24, 3d and' 4th eds. ; 25, 5th and 6th eds. (/t) Cholmeley v. Paxton, 3 Ring. 207, E. C. L. R. vol. 11 ; 10 Barn. & Cress. 564, E. C. L. R., vol. 21. (J) 11 Rep. 82 b. to the public lands of the United States; Humphries v. Humphries, 3 Ired. R. 362; Boyer v. Williams, 5 Mo. R. 335; Rasor v. Evans v. Inglehart, 6 G. & John's II. 190; Quails, 4 Blackf. R. 286. Singleton t). Singleton, 5 Dana's R. 92 ; Toby For further on the subject of emblements, v. Reed, 9 Conn. R. 225 ; Moorhead v. Sny- see Foster v. Fletcher, 7 Mon. R. 534; der, 33 Pa. St. R. 251 ; Walmsley v. Milne, Green v. Cartwright, Wright's R. 738 ; 7 C. B. R. (N. S.) 115. 74 OF CHOSES IN POSSESSION. ertj in the trees wlien cut would still remain in the landlord, and the action only would be discharged, which he might otherwise r*iq-] ^^''^^"^ maintained *against the tenant for the waste com- -' mitted by the act of felling the timber.(/:) Animals ferce naturce, or wild animals, including game, are ex- ceptions from the rules which relate to other movables, on the ground that until they are caught there is no property in them. If therefore the owner of land in fee simple should die, the game on his land, or the fish in any river or pond upon the land, will not belong to his executor or administrator. (/) And if a man should have a park or warren, he has no true property in the deer, conies, pheasants, or partridges ; but they belong to him only " ra- iione jprivilcgii for his game and pleasure so long as they remain in the privileged place."(m) But a property in wild animals may be obtained by reclaiming or catching them [jproiJter in- dustriam), or by reason of their being unable to get away [propter impotentiam.){n) Thus deer, even though in a legal park, may be 80 tame and reclaimed as to pass to the executors of the owner of the park on his decease ;(o) so rabbits in a hutch, fish in a box, and young pigeons in a dove house, unable to fly, will belong to the executor or administrator of the owner, and not to his heir. It appears to have been formerly thought that hawks and hounds were not subjects of personal property, but would descend with the lands to the heir ; but this opinion is not now law. " For," observes the author of the Office of an Executor,(j9) " although they be for the most part but things of pleasure, thai hindereth not but they may be valuable as well as instruments of music, r*9m ^^^^ tending to delight *and exhilarate the spirits ; a cry of hounds hath to my sense more spirit and vivacity than any other music." The occupier of land for the time has now the sole right of killing and taldng the game upon the land, unless such right be (A) Walter Idel's Case, 11 Rep. 83 a. (/) Co. Litt. 8 a ; The Case of Swans, 7 Rep. 17 b. («») 7 Rep. 17 B ; Year Book, 4 Hen. VI, 55 b. 56 a : F. N. B.-87, ii.(a). (n) 2 Black. Cora 391, 394 ; Williams on Executors, pt. 2, bk. 2, ch. 2, sec. 1. (o) Morgan v. The Earl of Abergavenny, 8 C. B. 678, E. C. L. R., vol. 65. (p) Wentworth's Office of an Executor, 143, 14th ed. The author of this work is sup- posed to have been Mr. Justice Doddridge. OF CHATTELS WHICH DESCEND TO THE HEIR. 75 reserved to the landlord or any other person. (5-) Where the land- lord has reserved to himself the right of killing game, he may authorize any person or persons, who shall have obtained cer- tificates, to enter npon the land for the purpose of pursuing and killing game thereon. (;r) And the lord of any manor or reputed manor has the right to pursue and kill the game upon the wastes or commons within the manor, and to authorize any other person or persons, who shall have obtained certificates, to enter upon such wastes or commons for the same purpose.(5) When game or other wild animals were killed on any land by any other person than the rightful 0"vvner, the law, with respect to the property in the game, was formerly as follows : If a man started any game within his own grounds and followed it into another's, and killed it there, the property remained in himself. And so if a stranger started game in one man's chase or free warren, and hunted it into another liberty, the property continued in the owner of the chase or warren ; this property arising from, privilege, and not being changed by the act of a mere stranger. Or if a man started game on another's private grounds, and killed it there, the property belonged to him on whose ground it was killed. Whereas, if, after being started there, it was killed in the grounds of a third person, the property belonged not to the owner of the first ground, because the property was local ; nor yet to the owner of the second, because it was not started ^^^-1-1 *in his soil ; but it vested in the person who started and ^ -■ killed it, though guilty of a trespass against both the owners.(^) And this appears to be still the law with respect to wild animals which are not game.(i<) But with respect to game, an alteration appears to have been made by the last Game Act,(a:) which seems to vest the property in game killed on any land by strangers, in the person ha\^ng the right to kill and take the game upon the land.(j/) (q) Stat. 1 and 2 Will. IV, c. 32. See as to hares, stat. 11 and 12 Vict. c. 29. (r) Stat. 1 and 2 Will. IV, c. 32, s. 11. (») Sect. 10. (0 2 Bl. Com. 419; Churchward v. Studdy, 14 East, 249. (m) See Blades v. Higgs, 12 C. B., N. S. 501, E. C. L. R., vol. 104, and qu as to the correctness of the grounds of this decision. (x) Stat. 1 and 2 Will. IV. c. 32. (y) Sect. 36. Rigg v. Earl of Lonsdale, 1 II. and N. 923. 76 OF CHOSES IN POSSESSION. [*22] *CHAPT.ER II. OF TROVER, BAILMENT, AND LIEN. Having now considered tlaose movable articles of property which form exceptions to the rules by which chattels personal are in general governed, let us proceed to notice some circumstances in which chattels personal may be placed, so as to form not real but apparent exceptions to the primary rule already noticed,(a) that personal property is essentially the subject of absolute ownership, and cannot be held for any estate. The property in goods can only belong to, or be vested in, one person at one time : in this respect it resembles the seisin of feudal possession of lands. (6) Lands, however, may be so conveyed that several persons may possess in them, at the same time, several distinct vested estates of freehold, one of them being in possession, and the others in remainder, or the last perhaps being in reversion. (c) But the law knows no such thing as a remainder or reversion of a chattel. It recognizes only the simple property in goods, coupled or not with the right of immediate possession. This simple prin- ciple of law, if carefully borne in mind, will serve to explain many points which would otherwise appear difficult or even contradic- tory. It musl be remembered, however, that it does not strictly apply to the movable articles noticed in our first chapter, which, from their connection with the land, are often governed by the principles of real, rather than those of personal property. *1. When the property in goods is coupled wath the pos- *- -' session of them, the ownership is of course complete. This is the common and usual case of the ownership of chattels per- sonal : the owner knows that the goods are his own, and in his owai possession, and that is sufficient for him. Circumstances {a) Ante, p. 7. (b) See Principles of the Law of Real Property, 111, 2a ed. ; 116, 3d & 4th eds. ; 121, 122, 5th ed ; 127, 128, 6th ed. (c) Ibid. p. 198, 2d ed. ; 206, 4th ed. ; 215, 5th ed. ; 225, 6th ed. OF TROVER, BAILMENT, AND LIEN. 77 may, liowever, arise to change this state of things. An article may be lost. In this case the owner still retains his property in the thing, but he has lost the possession of it. The property, however, which still remains in him, entitles him to the pos- session of the article whenever he can meet with it ; or, in legal phraseology, the property draws with it the right of possession, ((/) If therefore another person should find the article lost, he -v^dll have no right to convert it to his own use, if he has any means of knowing to whom it belonged, but must on demand deliver it up to the rightful owner, in whom the property is already vested. K he should refuse to do so, such refusal will argue tjiat he claims it as his own, and will accordingly be evidence of a conversion of the thing to his own use.(e) For the wrong or iresimss thus com- mitted, a specific remedy has been provided by the law, in the shape of an action of trover and conversion, or more shortly an action of trover, which is one of those actions comprised within the technical class of trespass on the case. The word trover is from the French trovver, to find ; and the word conversion is added, from the conversion of the goods to the use of the defendant being the gist of the action thus brought against him. That the defendant should have found the article lost is not his fault, but his con- version of it to his own use is a trespass, and renders him liable to the action we are now considering. This action accordingly is now constantly brought to recover damages for withholding the possession of goods whenever they *have been wrongfully ^^04-1 converted by the defendant to his own use without regard '- -■ to the means, whether by finding or otherwise, by which the de- fendant may have become possessed. (/) This action can be maintained only when the plaintiff" has been in possession of the goods,(^) or has such a property in them as draws to it the right to the possession. If the goods have been wrongfully converted by the defendant to his own use, the plaintiff will succeed, if he should prove either way his own right to the immediate pos- session of the goods ;(A) if he should not prove such right, he {d) 2 Wms. Saunders, 47 a. (e) Ibid 47 e ; Agar v. Lisle, Hob. 187 ; Bac. Abr. tit. Trover (B). (/) 3 Black. Com. 15.3. {g) Addison v. Round, 4 Ad. and Ell. 799, E. C. L. R., vol. 31; S. C. 6 Nev. and Man. 422 ; Brooke v. Mitchell, 6 N. C. 349, E. C. L. R., vol. 37 ; S. C. 8 Scott, 739. Iji) Wilbraham v. Snow, 2 Saund. 47 ; Armory v. Delamirie, 1 Str. 505 ; Roberts v. Wyatt, 2 Taunt. 268 ; Legg v. Evans, 6 Mee. and W. 36 ; Stephen on Pleading, 354, 5th ed 78 OF CHOSES IN POSSESSION. will fail.(i) The property in the goods is that which most usually draws to it the right of possession ; and the right to maintain an action of trover is therefore often said to depend on the plaintiff's property in the goods ; the right of immediate possession is also sometimes called itself a special kind of property ; (A) hut these expressions should not mislead the student. The action of trover tries only the right to the immediate possession, which, as we shall now see, may exist apart from the property in the goods. For let us suppose that the finder of the article lost, whilst ig- norant of the true owner, should have been wrongfully deprived of it by a third person. In this ease, the owner being absent, the finder is evidently entitled to the possession of the thing; and he will accordingly succeed in an action of trover brought ^ ^ by him *against the wrongdoer. (^)^ Here the property •- -^ in the thing which was lost evidently belongs still to the original owner; but the right of possession is in the finder, until the owner makes his appearance. The owner's property then draws with it the right of possession ; and should the finder con- (i) Gordon v. Harper, 7 T. Rep. 9; Ferguson v. Cristall, 5 Bing. 305, E. C. L. R., vol. 15 i Leake v. Loveday. 4 Man. and Gr. 972, E. C. L. R., vol. 43; Bradley v. Copley, 1 0. B. 685, E. C. L. R., vol. 50. (k) Rogers v. Kennay, 9 Q. B. 592, E. C. L. R., vol. 58. (/) Armory v. Delamirie, 1 Str. 505 j 1 Smith's Leading Cases, 151 ; Bridges v. Hawkes- worth, 15 Jur. 1079. ^ The finder of a chattel has a special fully obtained, is a suflBcient title in the property in it, and may maintain trover plaintiff, as against a mere stranger or against any one who shall convert 't, except wrongdoer ; Knapp v. Winchester, 11 Vt. R. the true owner. But this rule does not apply 351; Coffin v. Anderson, 4 Blackf. R. 395 ; to the finder of a chose in action, e. g., a Cook v. Patterson, 35 Ala. R. 102; Jeffries promissory note or lottery ticket ; McLaugh- v. Great Western R. R. Co. 34 Eng. L. & Eq. lin V. Waite, 9 Cow. R. 670 ; see Brandon v. R. 122. But not as against the real owner ; Huntsville Bank, 1 Stew. R. 320 ; Boyle v. Sylvester v. Girard, 4 Rawle's R. 185. Roche, 2 E. D. Smith's R. 335 ; and so of The finder of a chattel may maintain tro- money in specie, or bank bills ; 20 N. Y. R. ver for it ; Clark v. Mallory, 3 Harring. R. 68. 76; though it is otherwise where the money can Trover may be maintained against a stran- be identified, as specie on special deposit, or ger, upon a mere prior possession obtained bank bills by proof of denomination, letter, by a purchaser of chattels, under a void ex- Ac. For the law on this subject, in regard ecution ; Duncan v. Spear, 11 Wend. R. 54. to those securities known on the stock ex- But where a chattel is converted by a bailee, changes as bonds payable to bearer, with or who sells or leases it without authority, the without coupons, for interest attached to bailor may maintain trover for it, even against them, see a7ite, note (1), p. 5. a vendee or lessee in good faith and without Possession, whether rightfully or wrong- notice ; Crocker t;. Gullifer, 44 Maine R. 491. OF TROVER, BAILMENT, AND LIEN. 79 vert the article found to his own use, he in his turn will be liable to an action of trover in respect of the owner's right of possession. Thus, so far as we have already proceeded, we have found nothing more than a simple property in goods, existing with or without the right of possession. The action of trover tries the right of possession, and may or may not determine the property. For, strange as it may appear, there is no action in the law of England by which the property either in goods or lands is alone decided. 2. But the article in question, instead of being lost and found, may become the subject of bailment. Bailment is defined by Sir William Jones, in his admirable and classical Treatise on the Law of Bai]ment,(m) to be a delivery of goods in trust, on a con- tract expressed or implied, that the trusts shall be duly executed, and the goods redelivered as soon as the trust or use for which they were bailed shall have elapsed or be performed. The 'term bailment is derived from the French word bailler, to deliver. The person who delivers the goods is called the bailor ; the person to whom they are delivered the bailee. The trusts on which goods may be delivered are various : the principal are the following. They may merely be lent to a friend, or left in the custody of a warehouseman or wharfinger, or they may be intrusted to a car- rier to convey to a distance, or to an agent or factor to sell ; or they may be pawned for *money lent, or let out to hire.(?i) (-^j^«-i In all cases of bailment, however, the simple rule still holds, ^ -' that the 'property in goods can belong to one party only; and when any goods are bailed, the property still remains in the bailor.(o) The possession of the goods, however, is evidently for the time being with the bailee. But if, while goods are in bail- ment, a third person should become possessed of them, and should wrongfully convert them to his own use, the right to re- cover possession will in some degree depend upon the nature of the bailment. If the bailment should be what is called a simple bailment, as in the four first instances above mentioned, that is, a bailment which does not confer on the bailee a right to exclude the bailor from (m) p. 117. (n) See Coggs v. Bernard, 2 Ld. Raym. 909, 912. (o) Franklin v. Neate, 1.3 Mee. and W. 481. 80 OF CIIOSES IN POSSESSION. possession, in sucli a case either tlic bailee or the bailor may maintain an action of trover against the wrongdoer. (p)^ The bailee may maintain this action, because the action depends only on the right to the possession which the bailee has by virtue of the bailment made to him;((^) and the bailor may also maintain the action, because his property in the goods draws with it the right of possession, and the bailment is not of such a kind as to vest this right in the bailee solely. The bailee is rather in the situation of servant to the bailor, and the possession of the one is equivalent in construction of law to the possession of the other. But as it would be unjust that the wrongdoer should pay dama- ges twice over for his offence, the recovery of damages either by bailee or bailor deprives the other of his right of action. (r) If, however, the bailment should not be of the simple kind, but r^ofT.n should confer on *tlie bailee the right to exclude the bailor '- -* from the possession, here, though the property in the goods still remains in the bailor, the bailee alone can maintain an action of trover against any person who may have taken the goods and converted them to his own use. Thus the pawnee or hirer of goods can alone maintain an action of trover so long as the pawn- ing or hirin^g continues. (5) Here again we have the property in the goods still vested in one person, the bailor, drawing with it, in the case of simple bailment, the right to the possession, and, in the case of other bailments, temporarily disconnected from that right. If, however, any bailee, whatever be the nature of his bailment, should convert the goods bailed to him to his own use, he will by that act have determined the bailment; the prop- erty in the bailor will draw to it the right to immediate possession, and the bailor may accordingly recover damages for the act by an action of trover. (/) (p) Nichols V. Bastard, 2 C. M. and R. 659 ; Manders v. Williams, 4 Exch. Rep. 339. (q) Sutton V. Buck, 2 Taunt. 302. (r) Bac. Abr. tit. Trover (C). (s) Gordon v. Harpar, 7 T. R. 9 ; Burton v. Hughes, 2 Bing. 173, E. C. L. R., vol. 9; Ferguson v. Cristall, 5 Bing. 305, E. C. L. R., vol. 15 ; Pain v. Whitaker, Ry. and Moo. 99, E. C. L. R., vol. 21. (t) Cooper V. Willomatt, 1 C. B., 672, E. C. L R., vol. 50. 1 A. of Liverpool shipped goods, which, Held, that the bill of lading vested the prop- by the bill of lading, were to be delivered to erty in B , who might maintain an action in D. or his assigns, in Philadelphia. The freight his own name against the owner of the ship, was payable in Liverpool, and it appeared for the negligent carriage of the goods ; Grif- that the goods were shipped on account of A. fith v. Ingledew, 6 Serg. & Raw. R. 429 OF TROVER, BAILMENT, AND LIEN. 81 3. The last case requiring notice in whicli goods may be iu the possession of a person who has no property in them, is the case of the existence of a lien on the o-oocls, A lien is the rio-ht of a person in the possession of goods to retain them until a debt due to him has been satisfied, (m) A View, i^ e\i\\Qv particular or general. A particular lien is a right to retain the particular goods in respect of which the debt arises. A general lien is a right to retain goods in respect of a general balance of an ac- count. The former kind of lien is favored in law; but the latter, having a tendency to prefer one creditor above another, is taken strictly. (x) A particular lien is *given by the common p^,-,^-, law over goods which a person is compelled to receive ; '- -' thus carriers(j/) and iunkeepers(^) have a lien on the goods in their care ; although an innkeeper cannot detain his guest's per- son, or take his coat off his back, to secure payment of his bill.(a) A particular lien is also given by law to every person who by his labor or skill has improved or altered an article intrusted to his care : thus a miller has a lien on the flour he has ground for the cost of grinding; (6) and a shipwright has a lien on a ship in- trusted to him to repair for the costs of repairing it.(c)^ So a lien {u) 2 East, 235 ; 2 Rose, 357 ; Smith's Compendium of Mercantile Law, 534, 5th ed. ; 563, 6th ed. (x) 3 Bos. and Pul. 494. (y) Skinner v. Upshaw, 2 Lord Raym. 752. (z) Thompson v. Lacey, 3 B. and Aid. 283, E. C. L. R. vol. 5. (o) Sunbolf «;. Alford, 3 Mee. and Wels. 248. The lien of innkeepers on the goods of their guests is now regulated by stat. 26 and 27 Vict. c. 41. (b) Ex parte Ockenden, 1 Atk. 235. (c) Franklin v. Hosier, 4 B. and Aid. 341, E. C. L. R. vol. 6. • By the civil law, and the general ad- 1 Dodson, 235 ; The Alexander, lb. 280; The miralty law, material-men have a lien upon Zodiac, 1 Harr. 325 ; The Vibilia ; Buxton v. the vessel ; Domat's Civil Law, book 3, tit, Snec, 1 Vesey, 154; Hoare v. Clement, 2 1, sec. 5. Show. 338. But by the common law of England, which But under the general admiralty law in is binding on the Admiralty Court, those who England, thi.s country, and elsewhere, me- build, repair, or supply a domestic vessel, chanics, material-men, and others, doing have no lien upon the vessel herself, except work on, or furnishing materials or supplies the common law lien of the mechanic, ari.sing for a foreign vessel, have a lien on such ves- from his mere possession, and only coexten- sel, without any limit as to its duration in sive with such possession ; Franklin t;. Hosier, point of time; Justin v. Ballam, Salk. 34; 4 B. & A. 341 ; The Neptune, Cumberlege, 3 Ex parte Shank and others, 1 Atk. 234 ; Wil- Harr. 136, 130 ; Bland, Ex parte, 2 Rose, 91 ; kins v. Carmichael, 1 Doug. 101 ; Watkinson The Harmonie, 1 W. Rob. 178; Raitt v. v. Bernardiston, 2 Wms. Rep. 367 ; Ex parte Mitchell, 4 Camp. R. 146 ; The Browmina, Halket, 3 Ves. & B. 135 ; 2 Rose, 194, 228 ; 6 82 OF CIIOSES IN POSSESSION. may be claimed for training a horse, because he is improved by the hibor and skill thus bestowed upon him;((:Z) but no lien can arise merely for his keep,(e) unless he has been kept by an inn- (d) Bevan v. Walters, 1 Moo. and Mai. 2.36, E. C. L. R. vol. 22. (e) Wallace v. Woodgate, 1 Ry. and Moo. 293, E. C. L. R. vol. 21. Bell, 2 Cro. and Mee. 304, 311; 4 Tyr. 244, 252. See Sanderson v. The Ship Fortitude, 3 Summers's R. 228 ; The Brig Nestor, 1 Id. 74, 79 ; The Schooner Marion, 1 Story's C. C. R. 68 ; Reed v. The Hull of a New Brig, Id. 246 ; Budding- ton V. Stewart, 14 Conn. R. 404 ; Davis v. A New Brig, 1 Gilpin's R. 473 ; The Gen- eral Smith, 4 Wheaton's R. 438; Shrews- bury V. The Sloop Two Friends, Bee's Adm. R. 433 ; Gardner v. The Ship New Jersey, 1 Peter's Adm. R. 22, 3; The Jerusalem, 2 Gallis. R. 345; The Young Mechanic, 2 Curtis's C. C. R. 404; Monsoon, Sprague's Decs. 37 ; Perkins v. Pike, 42 Maine R. 141 ; The Active, Olcott, Adm. 271 ; The Tackle, Ac, of the America, 1 Newb. Adm. 196. Whether a vessel is domestic or foreign, de- pends upon the residence of her owners ; The Golden Gate, 1 Newb. Adm. 308 ; and vessels belonging to one State, .when in the ports of another, are deemed foreign ; TheChusan, Sprague's Decs. 39. Although there is no fixed time within which this lien must be en- forced, yet it may be lost by negligence or diilay, and when the rights of third parties are compromised, courts of admiralty will require vigilance in parties who seek their aid, and will not sit to enforce stale and dor- mant claims; The Ea'stern Star, Ware's R. 186, 212 ; Packard v. The Louisa, 2 Wood. & M. 48 ; The Mary, 1 Paine's R. 180 ; The Margaret, 3 Harr. R. 238 ; The Nestor, 1 Summers's R. 87; Ex parte Foster, 2 Story's R. 145; The Rebecca, Ware's R. 212; Lillie Mills, Sprague's Decs. 307. The regular sale of property, under a de- cree of the court, gives a good title against all the world, and where the property was af- fected by a lien, the proceeds are still affected by it in whosesoever hands they may be ; Ben- edict's Adm. 309 ; Gilpin's R. 189, 649 ; Gardner v. The Ship New Jersey, 1 Peters's Adm. R. 223 ; The John, 3 Rob. R. 288. In many of the States of this country, me- chanics and material-men have, by positive statutory enactment, a lien on domestic ves- sels for work done on or materials furnished for such vessel ; Scates, Treat & Black, Stats. 111. (1858), p. 785 ; Revised Stat, of Indiana, (1838), 120 ; Louisiana, Civil Code, Art. 2748. A similar law exists in Missouri and in Maine, though the lien only continues for four days from the time the work was com- pleted, or materials furnished ; Revis. Stats. Maine (1867), p. 569. In Pennsylvania, the lien continues until the vessel shall have pro- ceeded on the voyage next after the work done, or materials furnished, and no longer ; Pardon's Dig. (1861), x. 62; and by an act of the 20th of April, 1858, vessels navigating the rivers Alleghany, Monongahela, or Ohio, are made liable to a like lien, provided suit shall be commenced on said lien within two years after the work is done, or materials furnished; lb. p. 64. In New York, it ceases after ten days frorn the departure of the vessel from the port where the debt was contracted, to some other port in the State, and immediately on the vessel leaving the State ; N. Y. Revised Statutes (1859), pp. 795, 796; but the debt must amount to fifty dollars or upwards. In New Hampshire, it exists for four days after the work is completed ; N. Hampshire Com- piled Stat. 296 ; in Florida, 30 days ; Thomp- son's Dig. 412. In New Jersey, debts of twenty dollars and upwards, for work and materials, are made liens for the period of nine months ; Nix. Dig. (1861), p. 529. In Massachusetts, the lien may be for any amount, and will continue until the debt is paid; Gen. Stats. Mass. (1860), p. 768. But these liens are generally postponed to the claims of mariners for wages. In Connecti- cut, Vermont, Maryland, Ohio, Arkansas, Mississippi, and Texas, there does not seem to be any such enactment. OF TROVER, BAILMENT, AND LIEN. 83 keeper, who is compelled to take him in.(/)' A lien on goods is not sufficient to warrant the sale of them,(^) nor does it authorize the possessor to charge for their standing. (A) A particular lien also arises in the case of salvage, or rescuing a ship or its lading from the perils of the sea or the queen's enemies, for the trouble and risk incurred ;(/) but this kind of lien has been modified by the Merchant Shipping Act, 1854, which provides for the ap- pointment of public receivers of all wreck, into whose hands any person, not being the owner, who finds or takes possession of any wreck, *is bound to deliver it as soon as possible. (J) r-^^r.-. The lien of a shipowner for freight is now regulated by '- -^ the- Merchant Shipping Act Amendment Act, 1862. (/;) A general lien, when it does not arise by express contract, or from a contract implied by the course of dealing between the par- ties,(/) accrues in consequence of the custom of some trade or profession ; and it may be local also, that is, confined to some par- ticular place. (m) It obtains in many trades, such as wharfin- gers,(??) dyer8,(o) calico printers,(j9) factors,(5')2 policy brokers,(r) (/) Johnson v. Hill, 3 Stark. 172, E. C. L. R. vol. 3. (g) Thames Iron Works Company v. Patent Derrick Company, 1 John and H. 93. (A) British Empire Shipping Company t?. Somes, 1 E. B. and E. 353, E. C. L. R. vol. 96. (i) Hartford v. Jones, 1 Lord Raym. 393 ; Baring v. Day, 8 East, 57. ij) Stat. 17 & 18 Vict. c. 104 ; amended by stats. 18 & 19 Vict. c. 91 ; 24 Vict. c. 10, 25 A 26 Vict. c. 63. (X-) Stat. 25 & 26 Vict. c. 63, ss. 66, 78. (/) Simmond v. Hibbert, 1 Rus. & Myl. 719. (m) Holderness v. Collinson, 7 Barn. & Cress. 212, E. C. L. R. vol. 13. (w) Naylor v. Mangles, 1 Esp. 109. (o) Savill V. Burchard, 4 Esp. 53. See, however. Close v. Waterhouse, 6 East, 523, n. (p) Weldon v. Gould, 3 Esp. 268. {q) Houghton V. Matthews, 3 Bos. & Pul. 488 , Cowell v. Simpson, 16 Ves. 280. (r) Man v. Shiffner, 2 East, 523. 1 In Pennsylvania a livery-stable keeper has of the legislature of that State ; Purd. Dig., a lien for the keep of a horse ; Young i;. Kim- suppl. 1344. ball, 23 Pa. St. R. 193; and the statute law ^ ^ factor, is sometimes said to be one, of that State authorizes a sale under the who buys or sells upon commission, or as an terms of the act, to satisfy the lien of livery- agent for others ; 3 Kent's Com. 622; but stable keepers and innkeepers; Purd. Dig, more .strictly, the term is only applicable to a 536. A power of selling goods, wares, mer- consignee for sale ; Story on Agency, ^ 111. chandise, or other property, for the satisfaction At least, only such a factor as is last describ- of their liens, for the costs or expenses of car- ed, has a lien for the general balance of his riage, storage, or labor bestowed on the same, account against his principal, or, in other is likewise given to commission merchants, words, a general lien ; Russell on Factors, factors, and all common carriers, by an act 204, 212. 84 OF CIIpSES IN POSSESSION. and bankers,(.s) and perhaps also common carriers. (<) Solicitors and attorneys have also a lien on all the deeds and documents of their clients in their possession for their professional charges gen- erally -.{ii) but this doctrine is to be taken in connection with the peculiar nature of title-deeds, which being the sinews of the land, follow the seisin of it, and may therefore be held by the client only for a limited interest. Thus, if a tenant for life should leave the title-deeds of the land in the hands of his solicitor, the lien of the solicitor for his professional charges would be coextensive only with his client's interest, and on the client's decease the solicitor would be bound to deliver up the deeds to the remainderman, r*Qm ^^t,^ough his *charges might remain unpaid.(i;) So, if the *- -■ client should be a mortgagee, the solicitor having the deeds would be bound to deliver them to the mortgagor, on the recon- veyance of the property, on payment to the mortgagee of all prin- cipal and interest ; for on such reconveyance the mortgagee ceased. (5) Davis V. Bowsher, 5 T. R. 488 ; Brandao v. Barnett, 3 C. B. 519, 530, E. C. L. R. vol. 54. (0 See Rushforth v. Hadfield, 6 East, 519 ; 7 East, 224 ; Aspinwall v. Pickford, 3 Bos. & Pul. 44, note. {u) Stevenson v. Blakelock, 1 Mau. & Sel. 535 ; Ex parte Sterling, 16 Ves. 258 ; Ex parte Pemberton, 18 Ves. 282. (v) Davies v. Vernon, 6 Q. B. 443, 447, E. C. L. R. vol. 51. In the year 1755, this right to a lien for and factor ; and there does not seem to be any the general balance of a factor's account, authority for extending the lien over any seems first to have been solemnly adjudged in property of the principal in the hands of England, in the case of Kruger v. Wilcox ; the factor, other than that which has been Ambler, 252. consigned for sale by the former to the latter, Any agent or broker, however, has a par- so as, for example, to embrace goods pur- ticular lien upon the goods of his principal chased by the factor for his principal. See while in his possession. This lien, is a also Wilmerding v. Hart, Hill & Denio's R. right to retain any article of his principal, 305. for some charge or claim growing out of, or It has been held by Lord Ellenborough, at connected with, that identical thing; such as Nisi Prius, in Boardmant;. Sill, cited 1 Camp, for labor, or services, or expenses, upon it ; 410, note, that a factor or broker will lose Story on Agency, ^ 354. his lien, if, when the property is demanded The liens above referred to, whether gen- of him, he claims to retain it on a different eral or particular, are implied by law, unless ground than that of the lien — making no they have been waived by agreement. mention of it ; but the correctness of this de- But the general lien of a factor proper is cision may well be doubted. But see White not favored by the law. Thus in Houghton v. Gainer, 2 Bing, 23. But if a factor con- V. Matthews, 3 Bos. & Pul. 485, it was held sent to a sale by the owner, or conceal from that a general lien did not attach, in respect the purchaser his claim on the property, his to a debt which arose prior to the time of the lien is gone ; Gragg v. Brown, 44 Maine R. commencement of the relation of principal 157. OF TROVER, BAILMENT, AND LIEN. 85 to have any interest in the land.(a:) And in like manner if the client should be a mortgagor, the solicitor would have no right to retain the deeds as against the prior claim of the mortgagee ;[y) and if the client should be a trustee, the deeds must be given up for the purposes of the trust. (z) This lien also extends only to chai-ges strictly professional,(rt) and to documents in the pos- session of the attorney or solicitor in his professional character ;{b) but it has been held that such lien is assignable, together with the debt and documents, to a third person not a solicitor or attor- ney, (c) A mere certificated conveyancer has no general lien on the documents in his hands.(6?) Lien, then, of whatever kind, is merely a right to retain the possession of the goods. This right of possession enables the per- son who has been in possession by virtue of the lien to main- tain an action of trover for the goods ;(e) but the property in the goods still remains with the owner ; and if the person having the lien should give up the possession of the goods, his lien will be *lost;(/) the owner's property in them will draw to it the p-,,qi-i right of possession, and enable him to maintain an action of trover.(^) And if the person having the lien should take a security for his debt, payable at a distant day, his lien would on that account be lost, as it would be unreasonable that he should detain the goods till such future time of payment ;{h) and in this case also an action of trover may be maintained by the owner of the goods, by virtue of the right of possession now accrued to him in respect of his property. (e) In all the above cases of finding of goods, bailment, and lien, it (x) Wakefield v. Newbon, 6 Q B. 276, E. C. L. R. vol. 51. (y) Smith v. Chichester, 2 Dr. & War. 893 ; Blunden v. Desart, Id. 405 ; Pelly v. Wathen. 7 Hnre, 351 ; 1 De Gex, Mac. & Gord. 16. (z) Baker v. Henderson, 4 Sim. 27. (a) The King v. Sankey, 5 Ad. & Ell. 423, E. C. L. R. vol. 31 ; Worrell v. Johnson, 2 Jae. & Walk. 218. (b) Champernown v. Scott, 6 Madd. 93 ; Balch v. Symes, T. & Russ. 87. (c) Bull V. Faulkner, 2 De G. A S. 772, sed qu. (d) Hollis V. Claridge, 4 Taunt. 807 ; Steadman v. Hockley, 15 Mee. & Wels. 553. (e) Legg V. Evans, 6 Mee. & Wels. 36. . •(/) Kruges v. Wilcox, Ainb. 254. (g) Sweet V. Pym, 1 East, 4. (A) Cowell V. Simp.son, 16 Ves. 275. (i) Hewison v. Guthrie, 2 New Gas. 756, 759, E. C. L. R. vol. 29. 86 OF CIIOSES IN POSSESSION. appears clear, therefore, that the property in the goods is still simply vested in one party only, although the right to their imme- diate possession may be in another party, and the actual posses- sion possibly in a third. [*32] *CHAPTER III. OF THE ALIENATION OF CHOSES IN POSSESSION. Choses in possession have always been freely alienable from one person to another. The feudal principles of tenure, which in ancient times opposed the alienation of landed estates, could have no application to the then insignificant subjects of personal prop- erty ; although the full right of testamentary disposition was not, as we shall hereafter see, enjoyed in early times. But, though the property in personal chattels may be freely aliened, it is impossi- ble for a man to make a valid grant in law of that in which he has no actual or potential property, but which he only expects to have.^ A person who has an interest in land may grant all the fruit which 1 An agreement to sell a chattel which is proof that it had long been the course of in an unfinished state, to be delivered at a business, for curriers in the city to purchase future time, when finished, is an executory leather of tanners in the country while in contract, upon which a present property does process of manufacture, to be delivered when not pass, though an action will lie for a tanned, and that advances were frequently breach of the agreement; Pritchett «?. Jones, made on such purchases; Ibid. And to the 4 Rawle's R. 260. When, therefore, A. (a same principles, see Nesbit v. Burry, 25 Pa. tanner in the country), on the olst of July, St. R. 208 ; Dickson v. Forsyth, 1 Grant's 1828, in consideration of a pre-existing debt, R. 26; Andrews v. Durant, 1 Kernan's R. contracted to sell to B. (a currier in the city), 35; Hewlett'. Flint, 7 Gal. R. 264; Petten- a quantity of hides and skins, then in the gill v. Merrill, 47 Maine R. 109. vats of the vendor, undergoing the process of A sale is an executed contract, to consti- tanning, but which were susceptible of inime- tute which delivery in fact, or in law, is in- diate delivery, and agreed to deliver them dispensable, and it cannot be given of a thing on or before the 12th of November following, which has not yet fully come into existence ; some of them at fixed prices, and others at Winslow v. Leonard, 24 Pa. St. R. 14; the market price, to be passed to the credit Clemens v. Davis. 7 Pa. St. R. 263. But, of A., to settle his account, it was held, that where a contract is made for the purchase of no immediate property vested in B., and an article to be delivered when finished, and that the goods were liable to execution as the afterwards while the article is still in an un- property of A., notwithstanding that the finished state, the original contract is aban- transaction was an open one, and there was doned, and the purchaser agrees to take the OF THE ALIENATION OF CHOSES IN POSSESSION. 87 may grow upon it hereafter. (a) So a grant of tlie next year's wool of all the sheep which a man now has is valid, because he has a potential property in such wool.(6) But a grant of the wool of all the sheep which a man ever shall have is void.(c) And in the same manner the assignment of a man's stock in trade passes only such articles as are his property at the time he executes such assignment, and will not comprise any other articles which he may afterwards purchase ;((i) not even if the instrument of assignment should purport to convey all goods which should at any time there- after he in or upon his dwelling-house. (e) The property in goods to be hereafter *acquired may however be effectually passed p^ooi by an assignment thereof in equity coupled with a license ^ -' to seize them.(/) (a) Grar.tham v. Hawley. Hob. 132 ; Fetch v. Tutin, 15 Mee. & Wels. 110. (b) Per Pollock, C. B., 15 Mee. & Wels. 116. (c) Com. Dig. tit. Grant (D.) (d) Taphill v. Hillman, 6 Man. & Gr. 245, E. C. L. R. vol. 46, S. C. 7 Scott, N. R. 967. (e) Lunn v. Thornton, 1 C. B. 379, E. C. L. R. M. 50 ; Gale v. Burnell, 7 Q. B. 850, E. C. L. R. vol. 53. (/) Congreve v. Evetts, 10 Exch. 293 ; Hope v. Hayley, 5 E. & B. 830 ; E. C. L. R. vol. 85 ; Allatt V. Carr, Exch. 6 W. R. 578 ; Chidell v. Galsworthy, 6 C. B. N. S. 471 ; E. C. L. R. vol. 95 ; Holroyd v. Marshall, H. of Lords, 9 Jur. N. S. 213 ; Reeve v. Whitmore, L. C, 12 W. R. 113, qu. ? article as unfinished, a delivery under the new contract is good as against an execution subsequently levied ; Ibid. A contract by a merchant to deliver hides to a tanner, to be charged at cost and five per cent, commission, and interest after six months, and when tanned to be returned to the merchant to be sold by him, and out of the sale the first cost and five per cent, to be deducted, and the balance to be paid to the manufacturer, is such a sale, as will subject the hides to levy as the property of the manu- facturer ; Jenkins v. Eichelberger, 4 Watt's R. 121. But gee, Hyde v. Cookson, 21 Barb. R. 92. Where wheat was sent to a miller, upon a contract that the sender might have the same amount back again, or as much flour as it would make, or the price thereof, the miller to mix that sent with his own ; it was held that it was a sale to the miller. Carli.sle v. Wallace 12 Ind. R. 252. And see Dick v. Lindsay, 2 Grant's Cases, 431. An agreement whereby goods are consigned by A. to B., to be sold at not less than the invoice prices, the invoice prices to be paid over to A., and all that the goods should sell for above those, to be retained by B., and such portion of the goods as remained to be returned to A., does not vest the property in B. ; McCullough v. Porter, 4 Wat. & Serg. R. 179. A coal company agreed with a contractor, to sell him a scow-boat on the conditions ex- pressed in the company's printed regulations, one of which was, that the company would furnish its contractors with boats for cash at cost, or on credit, with interest, but that the ownership should remain in the company till all the instalments of the price were paid, when a bill of sale should be made out ; the company were to pay the tolls, and the con- tractor to take freight from no other quarter. The boat still continued in the register of the company ; its original nuuiber being painted in letters and figures on the stern, and was in no way distinguishable from the other boats of the company. Held, that the property did not pass as against creditors of the con- tractors, until the boat was paid for ; Lehigh Co. V. Field, 8 Wat. * Sorg. R. 232. See also, Clough V. Ray, 20 N. II. R. 558. 88 OF cnosES in possession. The manner in which the alienation of personal chattels is ef- fected, is in many respects essentially different from the modes of conveying real estate. In ancient times, indeed, there was more similarity than there is at present. The conveyance of*land was then usually made by feoft'ment, with livery of seisin, which was nothing more than a simple gift of an estate in the land, accom- panied by delivery of possession. (^) This gift might then have been made by mere word of mouth ;(A) but the Statute of Frauds(/) made writing necessary ; and now every conveyance of landed propert}^ is required to be by deed, (J) Personal chattels, on the contrary, are still alienable by mere gift and delivery ; though they may be disposed of by deed ; and they are also assignable by sale^ in a manner totally different from the convey- ance requisite on the transfer of real estate.^ Each of these three modes of convej-ance deserves a separate notice. 1. And first, personal chattels are alienable by a mere gift of them, accompanied by delivery of possession. For this purpose no deed or writing is required, nor is it essential that there should be a consideration for the gift. Thus, if I give a horse to A. B., and at the same time deliver it into his possession, this gift is complete and irrevocable, and the propei-ty in the horse is thence- r*q4.1 *foi'ward vested in A. B.(/t) But if I purport to assign -■ the horse, and yet retain the possession, the gift, though made by writing (so that it be not a deed), is absolutely void at law,(^) and equity will give no relief to the donee.(m) It may, however, be observed, that if the donor should not attempt to part with the subject of gift, but should declare that he keeps possession of it in trust for the donee, equity will seize on and en- (g) See Principles of the Law of Real Property, 113, 2(1 ed. ; 118, 3d & 4th eds. ; 121, 6th ed. ; 127, 6th ed. (h) See Principles of the Law of Real Property, 117, 2d ed. ; 122, 3d &, 4th eds. ; 128, 5th ed. : 134, 6th ed. (i) Stat. 29 Car. II, c. 3, ss. 1, 2. (j) Stat. 8 & 9 Vict. c. 106, s. 3. • (k) 2 Blackf. Com. 441. (I) Irons r. Smallpiece, 2 Barn. & Aid. 551 ; Miller v. Miller, 3 P. Wms. 356. See also, Shower v. Pilck, 4 Ex. Rep. 478. (m) Antrobus v. Smith, 12 Ves. 39, 46 ; Edwards v. Jones, 1 My. & Cr. 226 ; Dillon v. Coppin, 4 My. & Cr. 647, 671. $. 1 By the law of Pennsylvania, the title to out a written bill of sale ; Weaver v. Th« a ship, passes by actual sale and delivery, as Susan 6. Owens, 1 Wall. Jr. R, 366. in the case of other personal chattels, with- OF THE ALIENATION OF CHOSES IN POSSESSION. 89 force this trust, altlioiigli voluntarily created.(?i) In some cases it is not possible to make an immediate and complete delivery of the subject of gift ; and in these cases, as near an approach as possible must be made to actual delivery ; and if this be done the gift will be effectual. Thus if goods be in a warehouse, the de- livery of the key will be sufficient ;(o) timber may be delivered by marking it with the initials of the as8ignee,(^) and an actual removal is not essential to the delivery of a haystack. (^) But the delivery of a part of goods capable of actual deUvery, is not a sufficient delivery of the whole. (r^ {n) Ellison v. Ellison, 6 Ves. 656 ; Ex parte Dubost, 18 Ves. 140, 150 ; Vandenberg v. Palmer, 4 Kay & John. 204. The case of Scales v. Maude, 6 De G., M. & G. 43, 51, is not to be relied on. (o) West V. Skip, 1 Ves. Sen. 244 ; Ryall v. Rowles, 1 Ves. Sen. 362 ; 1 Atk. 171 ; Ward V. Turner, 2 Ves. Sen. 443. (p) Stoveld V. Hughes, 14 East, 308. {g) Chaplin v. Rogers, 1 East, 190. (r) Per Pollock, C. B., 14 Mee. & Wels. 37, correcting a dictum of Taunton, J., 2 Ad. '&e^j)ost, p. 38, note (1). OF THE ALIENATION OF CHOSES IN POSSESSION. 93 or if a given weight or measure is sold out of a larger quantity, (j) the property will not pass to the vendee until the price shall have been ascertained by weighing the goods in the one case, or the goods sold shall have been separated by weight or measure in the other.^ So if an article be ordered to be manufactured, the prop- el) Busk V. Davis, 2 Mau. & Selw. 397 vol. 1. Shepley v. Davis, 5 Taunt. 617, E. C. L. R. 1 The title to goods sold, will not pass from vendor to vendee, without actual or con- structive delivery of the same ; Cutwater v. Dodge, 7 Cow. R. 85 ; Vining w. Gilbretb, .39 Maine R. 496 ; Haynes v. Hunsicker, 26 Pa. St. R. 58 ; Samuels v. Grorham, 5 Cal. R. 226 ; Hugus v. Robinson, 24 Pa. St. R. 9 ; Steelwagon v. Jeffries, 44 Id. 407. What will amount to a constructive delivery, is a question of fact to be ascertained by evidence, and certain rules of law ; Hondlette v. Tall- man, 14 Maine R. 400 ; Smith v. Craig, 3 Wat. & Serg. R. 14 ; Atwell v. Miller, 6 Md. R. 10 ; Chase v. Ralston, 30 Pa. St. R. 539 ; Caldwell v. Garner, 31 Mo. R. 131. As a general rule, the goods sold must be ascertained and designated, and for this pur- pose, where they form a part of a stock, or are mixed with any quantity of like goods, they must be separated therefrom before the property in them can pass ; and generally, if anything remains to be done to goods for the purpose of ascertaining their price, such as weighing, measuring, or testing them, the price depending upon their quality or quanti- ty, the performance of these acts, would seem to be a condition precedent to the transfer by a sale of the property in them, although the individual goods be ascertained ; Hutchinson V. Hunter, 7 Pa. St. R. 140 ; Halet). Huntley, 21 Vt. R. 50 ; Stevens et al. v. Ewe, 10 Barb. S. R. 95 ; Dixon v. Myers et al., 7 Gratt. R. 240 : Cunningham v. Ashbrook, 20 Misso. R. 563 ; Banchor v. Warren, 33 N. H. R. 183 ; Oilman v. Hill, 36 N. H. R. 311 ; Nicholson V. Taylor, 31 Pa. St. R. 128 ; Chapin v. Pot- ter, 1 Hilton's R. 366 ; but weighing, meas- uring, or setting apart, has been held to be essential only when necessary to define the subject-matter of the contract ; Leonard v. Winslow, 2 Grant's Cas., 139 ; Penna. R. R. V. Hughes, 39 Pa. St. R. 521; and deliv- ery of a bill of sale has been held a sufficient identification : Barrows v. Harrison, 12 Iowa R. 588. Where goods were partly measured off, and subsequently stolen, those measured were held to be the property of the buyer, and the re- mainder as belonging to the seller ; Crawford V. Smith, 7 Dana's R. 59 ; and the fact that a part of the price has been paid, will not alter the circumstances, so as to make the contract complete, provided there is still something to be ascertained ; Rapelye v. Mackie, 6 Cow. R. 250 ; Joyce v. Adams, 4 Seld. R. 291 ; even in a case where the vendee has resold the goods before they had been separated, it was held that the property had not passed from the original vendor ; Hunter v. Hutch- inson, 7 Pa. St. R. 140 ; Scudder v. Wor.ster, 11 Cush. R. 573. Where, however, a horse was sold at a certain price, or such other price as a third person should name, and the third party refused to name a price, it was held that the sale was determined at the sum mentioned by the parties ; Hollingsworth v. Bates, 2 Blaekf. R. 340 ; Moore v. Pierey, 1 Jones's L. R. 131; so, too, in the ease of a a sale of 625 bags of corn, part of a larger lot, being the 625 bags which should first ar- rive in port, it was held that this was a suffi- cient separation to pass the title to the 625 bags ; Sahlman v. Mills, 3 Strobh. R. 384. And a contract to sell all the corn in a certain mill house, and a payment of part of the money, ve.sts the property in the buyer, even though it was not measured out to him ; Mor- gan V. Perkins, 1 Jones's L. R. 171. And see Jordan v. Harris, 31 Miss.R. 257. Where a paper manufacturer sold 2000 pieces of wall paper, a part of a larger lot, all of the same size, description, and value, and the purchaser paid the price, and took away at the time 1000 pieces, it being agreed that the other 1000 should remain until called for, but were not selected by the buyer, 94 OF CHOSES IN POSSESSION. erty in it will not vest in tlic person who gave the order, nntil it shall, mth his assent, have been appropriated for his beneiit.(/(;j^ (i) Atkinson v. Bell, 3 B. & Cress. 277, E. C. L. R. vol. 10 ; Wilkins v. Bromhead, 5 Man. & Gr. 963, 973, E. C. L. R. vol. 44. nor separated and set aside for him, it ■was held that no property passed ; and that, even if there had been no- dlher pieces on hand than those in the particular lot, and no more than the exact number, they would not have passed without a specific act of ap- propriation, equivalent to a delivery in con- teiriplalion of law. But if the piiper had been sold in a separate lot, or in gross, or if the pieces had been separated from the rest, and pointed out to the buyer as his 2000, the property would have passed, though there had been a small excess ; Golder w. Ogden, 15 Pa. St. R. .')28. In determining when the title to goods which are the object of a contract, passes, regard is of course to be had to the intention of the parties, and if by anything it appears that it was designed that the title should pass, notwithstanding there was still some- thing to be done, the contract will be deter- mined in accordance with that intention ; Amber v. Hamlet, 12 Pick. R. 76 ; Leedora V. Phillips, 1 Yeates's R. 529 ; Bowen v. Burk, 13 Pa. St. R. 148 ; Clemens v. Davis, 7 Pa. St. R. 263 ; Riddle v. Varnum, 20 Pick. R. 280 ; Harris v. Smith, 3 Serg. & Raw. R. 20 ; Denis v. Alexander, 3 Pa. St. R. 50 : Boswell v. Green, 1 Dutch R. 390 ; Beller v. Block, 19 Ark. R. 566 ; Chapin v. Potter, 1 Hilton's R. 366 ; Sewell v. Eaton, 6 Wis. R. 490 ; Leonard v. Winslow, 2 Grant's Cas. 139. Even the converse of the proposition, that delivery, actual or constructive, is necessary to pass title where goods are sold, is not al- ways true, for in the case of an actual deliv- er}' of personal chattels after a sale, the prop- erty may not pass, as when, for instance, the delivery has been conditional ; Andrew v. Dieterick, 14 Wend. R. 31 ; Davis v. Hill, 3 N. H. R. 382 ; Young v. Austin, 6 Pick. R. 280 ; Bennett v. Piatt, 9 Id. 558 ; Lester v. McDowell, 18 Pa. St. R. 91 ; Cutwater v. Dodge, 7 Cow. R. 85 ; Riddle v. Varnum, 20 Pick. R. 280; Houdlette v. Tallman, 14 Maine R. 400 ; Devane v. Fennell, 2 Ired. L. R. 36 ; Deshon v. Bigelow, 8 Gray's R. 159 ; Henderson v. Lauck, 21 Pa. St. R. 359 j Sargent V. Metcalf, 5 Gray's R. 306; Flee- man t-. McKean, 25 Barb. R. 474 ; Herring V. Hoppock, 3 Duers's R 20 ; Hunter v. Warner, 1 Wis. R. 141 ; Bryant v. Crosby, 36 Maine R. 562 ; McFarland v. Farmer, 42 N. H. R. 386 ; for delivery is but the evi- dence of a transfer of title ; McCandlish v. Newman, 22 Pa. St. R. 46.0 ; Henderson v. Lauck, 21 III. 359 ; hence, where it was agreed that the plaintiffs should deliver to a railroad a certain quantity of iron rails, which should be laid in a designated part of the tract, and upon payment should become the property of the road, and the rails were laid, it was held that they did not become the property of the road until paid for, and that the plaintiffs were entitled to hold them against subsequent mortgagees of the road ; Haven v. Emery, 33 N. H. R. 66. As a general test of the transfer of the title of goods by a sale, it is only necessary to in- quire whether the vendee can bring trover or replevin for them, or take them into his pos- session, without committing a trespass ; Les- ter V. McDowell, 18 Pa. St. R. 91 : McDow- ell V. Hewett, 15 Johns. R. 349 ; Smith v. Smith, 5 Pa. St. R. 254 ; Leedom v. Phil- lips, 1 Yeates's R. 629. See also, generally, Eagle y. Eichelberger, 6 Wat. R. 29; Brewer V. Smith, 3 Greenlf. R. 44 ; Mason v. Thompson, 18 Pick. R. 305 ; Barnard v. Poor, 21 Id. 378; Dunlap v. Berry, 4 Scam. R. 327 ; Frazier v. Hilliard, 2 Strobh. R. 309; Williams v. Allen, 10 Hump. R. 337; Lehigh Co. v. Field, 8 Wat. & Serg. R. 232 ; Macomber t;. Parker, 13 Pick. R. 175; Scott V. Wells, 6 Wat. & Serg. R. 357 ; Waldo v. Belcher, 11 Ired. R. 609 ; Sawyer v. Nichols, 40 Maine R. 21-2; Scudder «. Worster, 11 Cush. R. 573 ; Penna. R. R. v. Hughes, 38 Pa. St. R. 521. 1 See ante, note (1), p. 34. OF THE ALIENATION" OF CHOSES IN POSSESSION. 95 *But with regard to goods of the value of 10^. or upwards, [-^odt additional requisites have been enacted by the seventeenth ^ ^ section of the Statute of Fr9,uds,(^) which provides, "that no con- tract for the sale of any goods, wares, and merchandises for the price of 10^. sterling or upwards shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memo- randum in writing of the said bargain be made and signed by the parties to he charged by such contract, or their agents thereunto lawfully authorized.'" And by a 'modern statute, (m) this enact- ment "shall extend to all contracts for the sale of goods of the value of 10^. sterling and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or pro- vided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery." The above section of the Statute of Frauds has been interpreted by a vast number of cases decided on almost every one of the phrases it contains.(?z) The chief difficulty has been to determine the exact meaning of the acceptance of part of the goods and actual receipt of the same, required on the part of the buyer, and to ascertain in each particular case whether such acceptance and actual receipt have taken place or not. The acceptance required {1} 29 Car. II, c. 3. (/«) Stat. 9 Geo. IV, c. 14, s. 7. See Hoadley v. McLaine, 10 Blng. 482, 486, E. C. L. R. vol. 25. (7i) See Smith's Mercantile Law, 468, et seq , 5th ed. ; 495, et seq., 6th ed. 1 The provision of the English Statute York, at $50 ; in New Hampshire at $33.33 ; of Frauds, on this subject, is in force in South in Vermont at $40, am! in California at $200, Carolina and Georgia; Cason v. Cheely et while in Florida ail contracts for the sale of al., 6 Geo. R. 564 ; and in many of the personal property, no matter what may be States of the Union, analogous laws are in the value, must be in writing. In Alabama, operation, by which contracts for the sale of Delaware, Kentucky, Maryland, Missis.'-ippi, chattels, beyond a certain value, are declared Ohio, Pennsylvania, and Virginia, the English void, unless there be delivery, or earnest, or statute, resjiecting the sale of chattels above the contract be in writing ; thus, in Arkan.sas, the value of 10/., is not in force j nor does it Maine, and New Jer.«ey, this sum is fixed at apply in North Carolina or Texas. $30 1 in Massachusetts, Michigan, and New 96 OF CIIOSES IN rOSSESSION. appears not to be necessarily such as sliull preclude the purchaser from afterwards objecting to the quality of the goods,(o) and it j-^ -^ may be prior *to the receipt.]^ ;:>y Actual receipt seems, '- -' according to a great preponderance of authority, to mean receipt of the j^osscssion of the goods, and to be merely correlative to delivery of possession on the part of the vendor.(5') There must, therefore, be an actual transfer of the article sold, or some part thereof, by the seller, and an actual talcing possession of it by the buyer. (r) The possession of a simple bailee is, however, as we have seen,(s) constructively the possession of the bailor. If, therefore, any part of the goods be delivered to an agent of the A^endee, or to a carrier named by him, this is a sufficient receipt by the vendee himself ;(^) and if the goods should be in the possession of a warehouseman or wharfinger at the time of sale, the receipt by the purchaser of a delivery order, provided it were coupled with the assent of the bailee, would be a sufficient receipt of the goods within the statute. (m) The wharfinger holds the goods as the agent of the vendor, until he has agreed with the purchaser to hold for him. Then, and not till then, the wharf- inger is the agent or bailee of the purchaser, and the possession of such wharfinger is that of the purchaser ; and then only is there a constructive delivery to him. (a:-) The requisitions of the statute, it will be observed, are in the alternative. Either the buyer must accept -part of the goods sold, (o) Morton v. Tibbett, 15 Q. B. 428, E. C. L. R. vol. 69 : Bushell v. Wheeler, 15 Q. B. 442, E. C. L. R. vol. 69 ; sed qu., and see Hunt v. Hecht, 8 Ex. 814. (p) Cusack V. Robinson, 1 Best & Smith, 299, E. C. L. R. vol. 101. {q) Smith's Mercantile Law, 472, n. (g), 5th ed. ; 499, n. (»0> 6th ed. ; Saunders v. Topp, 4 Ex. Rep. 390 ; Castle v. Sworder, 5 H. & N. 281. (r) Baldey v. Parker, 2 B. & Cress, 37, 41, E. C. L. R. vol. 9. (5) A file, p. 26. (t) Dawes r. Peck, 8 T. Rep. 330 ; Hart v. Bush, 1 E. B. & E. 494, 498, E. C. L. R. vol. 96. See, however, Norman v- Phillips, 14 M. & W. 277 ; Coombs v. Bristol and Exeter Rail- way Company, 3 H. & N. 510. («) Bentall v. Burn, 3 B. & Cress. 423, E. C. L. R. vol. 10 ; Pearson v. Dawson, 1 E. B. & E. 448, E. C. L. R. vol. 96. See cf?ite, p. 35. {x) Farina r. Home, 16 M. & W. 119, 123. 1 In Georgia it has been held that there the buyer, that he will take the goods, then is no acceptance, so long as the buyer has the left for him at another place, at a future right to object to the quantity or quality : day, can be held an acceptance, or an admis- Lloyd t'. Wright, 25 Geo. R. 215. And in sion of acceptance; Shepherds. Pressey, 32 New Hampshire, no promise or declaration of N. H. R. 49. OF THE ALIENATION OF CHOSES IN POSSESSION. 97 and actually receive the same, or he *must give something in earnest or in part payment, or some note or memo- randum in writing must be signed. The two former alternatives are left as they were before the statute ; but the last is a new re- quisition, which must be observed in the absence of either of the former. (j/) The effect of the statute, therefore, is to abolish ten- der and mere words as sufficient for a sale, and to substitute for them the more exact e\^dence of a note or memorandum in \vrit- ing.(z) But as the memorandum may be signed by an agent law- fully authorized, the bought-and-sold notes given by a broker are a sufficient memorandum within the meaning of the statute.(rt) And it is held that the entry of a purchaser's name by an auc- tioneer's clerk at an auction is also sufficient to satisfy the statute, as the clerk is, for that purpose, the authorized agent of the pur- chaser. (6) But one of the contracting parties to a sale cannot be the agent for the other for the purpose of signing a memorandum of the bargain, (c) If the agreement is not to be performed -^dthin the space of one year from the making thereof, then, however small be the value of the goods, no action can be brought upon it, unless the agree- ment, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.^ This is another provision of the Statute of Frauds,(oi;) and will hereafter be noticed more particularly. Although the property in goods sold passes, as we *have r^^Y\ 8een,(e) from the vendor to the vendee, immediately upon (y) Lee v. Griffin, 1 Best & Smith, 272, E. C. L. K. vol. 101. (z) Every memorandum, letter or agreement made for or relating to the sale of any goods, wares or merchandise, is exempt from all stamp duty; stat. 55 Geo. Ill, c. 184, Sched., Part I, tit. Agreement. (a) Grove v. Aflalo, 6 B. & Cress, 117, E. C. L. R. vol. 13. (i) Bird v. Boulter, 4 B. & Add. 443, E. C. L. R. vol. 24. (c) Farebrother V. Simmons, 5 B. :) It has, however, been enacted, that the *wearing apparel and bed- p^r a-i ding of any judgment debtor or his family, and the tools '- -' and implements of his trade (not exceeding in the whole the value of five pounds), shall not be liable to seizure under any execution or order of any court against his goods and chattels.(^)^ And the Common Law Procedure Act, 1860, now provides, that where goods or chattels have been seized in execution by a {g) Stat. 13 Eliz. c. 5. (h) Wood V. Dixie, 7 Q. B. 892, E. C. L. R. vol. 53 ; Hale v. Saloon Omnibus Company, 4 Drew. 492. (j) 2 Wms. Saunders, 68 a, n. (1) . (/,) Pullen V. Purbecke, 1 Ld. Raym. 346. See the present forms of this writ of fi. fa., 9 Ado). A Ell. 986 et seg., E. C. L. R. vol. 36, New Cases, 366 et seq., E. C. L. R. vol. 35. (/) Stat. 8&9 Vict. c. 127, s. 8. 1 Provisions analogous to that stated in " In lieu of the property now exempt by law the text, and more or less liberal to the from levy and sale on execution, issued upon debtor, are in force in almost all the States any judgment obtained upon contract, and of the Union ; N. H. Compiled Slats. (1853), distress for rent, property to the value of p. 469, sec. 2 ; Thompson s Dig Ls. of Fla., three hundred dollars, exclusive of all wear- p. 356, sec. 3 ; 3 Revis. Stats, of N. Y. 645 ; ing apparel of the defendant and his family, Revis. Stats, of Vt. (1839), p. 240, sec. and all Bibles and school-books in use in the 13; 2 Compiled Ls. Michi. (1857), p. 1211 ; family (which shall remain exempted as Code of Ala. (1852), p. 453, sec. 2462; Gen. heretofore), and no more, owned by or in Stats. Mass. (1860), p. 68, sec. 32; Nix. Dig. possession of any debtor, shall be exempt (3d ed.), N. J., p. 269, sec. 13 ; Revis. Code from levy and sale on execution, or by dis- of N. C. (1855), p. 276, sec. 8; 1 Revis. tress for rent." Purd. Dig. (1861), p. 432, Stats. Ky. (1860), p. 495. See sec. 1, 6 Stats, sec. 20. of S. C, pp. 213, 214; Caruth. and Nichol. By the Constitution of the State of Michi- Stat. Ls. of Tenn., p. 533, and Ls. of Tenn. gan, it is provided, Art. xvi, sec. 1, that Supplt. (1846), pp. 230, 231 1 Ls. of Del., " the personal property of every resident of Revis. Code, 1852, pp. 393, 394 ; Dig. of the this State, to consist of such property only Stats, of Ark., pp. 496, 497; Revis. Stats. 0. as shall be designated by law, shall be ex- (1800), p. 1143, sec. 1 ; How & Hutch. Stat, empted to the amount of not loss than five Ls. of Missi., p. 634, sec. 18. hundred dollars, from sale on execution, or In Pennsylvania, the exemption law is other final process of any court;" Ac. 1 somewhat peculiar, it being enacted by the Comp. Ls. Michi. (1857), 72. act of the 9th' of April, 1849, sec. 1, that. 110 OF CHOSES IN POSSESSION. sheriff or other officer under process of the superior courts of comuion Uiw, and some third person claims to he entitled under a bill of sale or otherwise to such goods or chattels by way of security for a debt, the court or a judge may order a sale of the whole or part thereof, upon such terms as to paj'ment of the whole or part of the secured debt or otherwise as they or he shall think fit, and may direct the application of the proceeds of such sale in such manner and upon such terms as to such court or judge may seem just.fwi.) Glioses in possession are also liable to involuntary alienation on the bankruptcy of their owner. In this event all the personal estate of the bankrupt, wheresoever the same may be found or known, vests at once, first in the official assignee and then in the creditors' assignees under the bankruptcy by virtue of their ap- pointment. (/?.) And in order to prevent traders from obtaining false credit from the possession of property which is not their own, it is provided,(o) that if any bankrupt at the time he becomes bankrupt shall, by the consent and permission of the true owner r* r 1 1 thereof, *have in his possession , ordei\ or disposition, any goods ^ -' or chattels, whereof he was reputed owner, or whereof he had taken upon him the sale, alteration, or disposition as owner, the Court of Bankruptcy shall have power to order the same to be sold and disposed of for the benefit of the creditors under the bankruptcy. But it has been held, that until an order for the sale of such goods has been made by the coiirt, no property in them is vested in the assignees ;(^) and the order ought to specify the particular goods which are to be sold. (5-) The above provision appears now to extend to all persons, whether traders or not.(r) (m) Stat. 2.3 &, 24 Vict. c. 126. s. 13. {71.) Stat. 24 & 25 Vict. c. 134, ss. 108, 117. See post, the chapter on bankruptcy. (o) Stats. 6 Geo. IV, c. 16, s. 72 ; 1 & 2 Will. IV, c. od, s. 7 ; 5 & 6 Vict. c. 122, s. 59 et teg., repealed and consolidated by stat. 12 & 13 Vict. c. 106, s. 125 ; Hamilton v. Bell, 10 Ex. Rep. 545 ; 18 Jur. 1109 ; Reynolds v. Hall, 4 H. & N. 519 ; Holderness v. Rankin, 2 De Gex, F. A J. 258. (p) Heslop V. Baker, 6 Ex. Rep. 740 ; 15 Jur. 684. See Ex parte Heslop, 1 De G., M. & G. 477 ; Ex parte Wood, 4 De Gex, M. & G. 861 ; Ex parte Young, 4 De Gex, M. . Mason, 15 Mass. R. 74 ; R. & H. Stewart v. Eden, 2 Caines R. 150 ; Oatfield v. Waring, 14 Johns. R. 192 ; Doty v. Wilson, Id. 378 ; Parker v. Crane, 6 Wend. R. 647 ; Hicks V. Burhans et al., 10 Johns. R. 243; Cunningham v. Garvin, 10 Pa. St. R. 366. Third. Where one is under a moral obliga- tion to do a certain act, and subsequently, makes an express promise to do what he was bound by the prior moral obligation to per- form : Commissioners of Canal Fund i;. Perry, 5 0. R. 48 ; Hill V. Henry, 17 Id. 9 ; Shenk OF CONTRACTS. 139 become bankrupt and obtained Ms certificate, might formerly have been enforced against him, if, after his bankruptcy, he had V. Mingle, 13 Serg. & Raw. R. 29 ; Nesmuth V. Drum, 8 Wat. & Serg. R. 9 ; McMorris v. HerndoD, 2 Bail. R. 56 ; Glass v. Beach, 6 Vt. R. 176. But it is Dot every moral obli- gation that will support a subsequent promise ; for a promise to feed the hungry, or clothe the naked, or to perform acts of benevo- lence and charity, will not support an ac- tion ; as, where a son promised to pay for necessaries, which had been advanced to his father, if he did not, such promise was held not binding ; Cook v. Bradley, 7 Conn. R. 57 ; Parker v. Carter et al., 4 Munf. R. 273 ; and the same was held of an agreement by a father, to pay for the expenses of the sickness of a son, who was of age. and away from home, made subsequently to their being incurred ; Mills V. Wyman, 3 Pick. R. 207 ; and, of the same principle are, Dodge v. Adams, 19 Pick. R. 429 ; Ridgway v. English, 2 Zabr. R. 416 ; and Watkins v. Halstead, 3 Sandf. Super. C. R. 311, which last was a promise by a mar- ried woman, made after her divorce from her husband, to pay for necessaries which had been furnished her during her coverture ; btu see Hemphill v. McCiimans, 24 Pa. St. R. 367 : Yiser v. Bertrand, 14 Ark. R. 267; all of which cases, as well as the following, prove that by the term "moral obligation," as ap- plied legally, is meant, what the moralist would call a perfect moral obligation, that is, an obligation of justice, and not merely of benevolence and piety ; Jones v. Shorter et al., Admrs., 1 Kelly's R. 294 : Farnham «;. 0'. Brien, 22 Maine R. 481 : Andover, Ac, v. Gould, 6 Mass. R. 43 ; Davenport v. Mason, 15 Id. 74; Mercer v. Stark, Walk. (Miss.) R. 4.51 ; Tioga v. Seneca, 13 Johns. R. 380 ; Hatchell v. Odom, 2 Dev. & But. L. R. 302 ; McMorris v. Herndon, 2 Bail. R. 56 ; Hanley V. Farrar, 1 Vt. R. 420. But other cases indicate still more specifically, what is meant by theterm "moral obligation," showing that "it is not expressive of any vague and unde- fined claim, but of those imperative duties, which would be enforceable at law, were it not for some positive rule of law, legal max- im, or statute provision, which, with a view to general benefit, exempts the party in that particular instance, from legal liability. On such duties, so exempted, the express prom- ise operates to revive the liability, and take away the exemption, because if it were not for the exemption, they would be enforced at law through the medium of an implied promise." Paul V. Stackhouse, 38 Pa. St. R. 304. See also to the same point, one class of cases proving this, is that relative to bankrupts or insolvents, who, after obtaining a discharge, have promised their creditors to pay them in full ; Maxim v. Morse, 8 Mass. R.127 ; Trum- bull V. Tilton, 1 Fost. (N. H.) R. 129; Gra- ham V. Hunt, 8 B. Mon. R. 8 ; Shippey v. Henderson, 14 Johns. R. 178 ; Erwin v. Saun- ders et al., 1 Cow. R. 249; Stafi'ord v. Bacon, 25 Wend. R. 384 ; Depuy v. Stewart, 3 Id. 135 ; Kingston v. Wharton, 2 Serg. & Raw. R. 208 ; Earnest v. Parke, 4 Raw. R. 452 ; Field's Es- tate, 2 Id. 351 ; Lonsdale v. Brown, 4 Wash. C. C. R. 150 ; Bearing v. Moffitt, 6 Ala. R. 776 ; Sconton v. Eislord, 7 Johns. R. 36 ; Brown et ux.v. Collins, 8 Hum. R. 611 ; Feeny V. Daly, 8 Cal. R. 84 ; but note a difference, between a release by provisions of positive law, and a discharge by the voluntary act of the creditor; Montgomery v. Lampton, 3 Met. (Ky.) R. 519. Another class of cases has arisen from promises to pay debts barred by the statute of limitations, in which the prom- ises were held valid ; Carson ti. Clark, 1 Scam. R. 114; Hend'sExr., andExrx.,1^. Manner's Admrs., 5 J. J. Marsh. R. 257 ; Harrison v. Handley, 1 Bibb's R. 443 ; Gray v. Lawridge, 2 Id. 285 ; Bell v. Rowland's Admrs., Hard. R. 301 ; Guy V. Tarns, 6 Gill's R. 85 ; Bangs V. Hall, 2 Pick. R. 368 ; Davenport v. Ma- son, 15 Mass. R. 74; Dawes v. Shed et al., Exrs., 15 Id. 7 ; Exeter Bk. v. Sullivan et al., 6 N. H. R. 135 ; Kittredge v. Brown, 9 Id. 377 ; Walker v. Eastman, 6 Id. 367 ; Bus- well V. Roby, 3 Id. 467 ; Stanton v. Stanton 2 Id. 425 ; Atwood v. Coburn, 4 N. H. R 315; Rice et al., v. Wilder et. al., Id. 336 Belton, Admr., v. Cutts, Admr., 11 Id. 170 Ridgway v. English, 2 Zabr. R. 416 ; Exrs of Conovers v. Conover et al., Sax. R. 404 Saltur V. Saltur's Admr., 1 Halst. 405 ; Dnn forth V. Culb'ir, 11 Johns. R. 146; Sands v GeLston, 15 Id. 511 ; Hatchell v. Odom, 2 Dev. & Bat. L. R. 302; Sherrod v. Bennett 140 OF CHOSES IN ACTION. expressly promised to pay it;(J) but such a promise was required, (j) Trueman v. Fenton, Cowper, 544; Kirkpatrick v. Tattersall, 13 Mee. & Wels. 766. et al., 8 Ired. L. R. 309 ; Peebles i'. Mason, 2 Dev. L. R. 367 ; Smallwood v. Smallwood, 2 Dev. & Bat. L. R. 330 ; Rainey v. Link, 3 Ired. L. R. 376 ; Turner v. Chrisman, 20 0. R. 332 ; Hill v. Henry, 17 Id. 9 ; Jones et al., Exrs., V. Moore, Admr., 5 Bin. R. 573; Streeter t». Luter, Admr., Leg. Intellig. , Apr. 7, 1854 ; Eckert v. Wilson, 12 Serg. & Raw. R. 393 ; Fries v. Boiselet, 9 Id. 128 ; Farly V. Rustenbaden, 3 Pa. St. R. 418 ; Hayleba- ker V. Reeves, 12 Pa. St. R. 264 ; Forney v. Benedict, 5 Pa. St. R. 225 ; Gilkyson v. La^ rue, 6 Wat. & Serg. R. 213 ; Davis v. Steiner, 14 Pa. St. R. 275 ; Harbold's Exrs. v. Kuntz, 4 Id. 210 ; Huff v. Richardson, 7 Id. 388 ; Reynolds v. Johnson, 9 Hump. R. 444 ; Coles V. Kelsey, 2 Tex. R. 541 ; Burton v. Stevens, 24 Vt. R. 131 ; 22 Id. 179 ; Paddock v. Colby et al., 18 Vt. R. 485 ; Clementson v. Wil- liams, 8 Cranch's R. 73; Wetzell v. Bussard, 11 Wheat. R. 309; Bell v. Morrison, 1 Pet. R. 351 ; Lonsdale v. Brown, 4 Wash. C. C R. 150 ; Raudon v. Toby, 11 How. R. 493 ; Chandlery. Glover's Admr., 32 Pa. St. R. 509 ; Pritchard v. Howell, 1 Wis. R. 131. Upon the same principle, promises, made by one after arriving at full age. to do what he agreed to do while a minor, have been held to be legally operative ; Bliss et al. v. Perryman, Scam. R. 484 ; Taylor w. Rundell, 2 Annual R. 367 : Merriam et al. v. Wilkins et al., 6 N. H. R. 432 ; Wright v. Steele, 2 Id. 51 : or, a prom- ise made by a child who was heir to a large estate, to her brother-in-law, after she came of age, that she would indemnify him against all loss, by reason of a contract he had made with a third party, to be responsible for the charges of said child while a minor ; Baker V. Gregory, 28 Ala. R. 544. And by analogy with the foregoing cases, if the consideration be still continuing, a subsequent promise will be valid ; Carroll v. Nixon, 4 Wat. & Serg. R. 516 ; Carman v. Noble, 9 Pa. St. R. 366 ; Nesmuth v. Drum, 8 Wat. & Serg. R. 9 ; Lonsdale v. Brown, 4 Wash. C. C. R. 150 ; Grove v. McCalla, 21 Pa. St. R. 44 ; Bailey V. Bussing, 29 Conn. R. 1 ; so, a promise to pay the principal of a debt, void by the usury laws, is binding ; Early v. Mahon, 15 Johns. R. 147 ; and, this is also true of a promise made by an executor, relative to the debt of his testator ; which affords suflScient ground for an action against the executor de bonis projiriis ; Clark v. Herring, 5 Bin. R. 33 ; but a promise by an administrator will not take a case out of the statute of limitations ; Clark V. Maguire's Admrx., 35 Pa. St. R. 259 ; so, too, where money has been twice paid, through failure to produce the receipt given on first payment, a subsequent promise to re- fund, will be binding ; Bentley v. Morse, 14 Johns. R. 468. Another class of cases arises, where a promise to pay, has been made by an indorser of a promissory note, who has knowl- edge of a want of due diligence in the holder in giving him notice ; Breed v. Hillhouse, 7 Conn. R. 523 ; Hopkins v. Liswell, 12 Mass. R. 52 ; Thornton v. Wynn, 12 Wheat. R. 183. The consideration of a moral obligation, which seems to have given rise to more em- barrassment than any other, is, where a promise has been made to pay a debt, subse- quently to a voluntary release of the debt by the creditor ; some of the cases are in favor of the validity of such a promise ; Jamison V. Ludlow, 3 Ann. (La.) R. 493 ; Doty v. Wilson, 14 Johns. R. 378 ; Willing v. Peters, 12 Serg. k Raw. R. 182 ; McPherson's Admrs. V. Reeves, 2 Pa. R. 521 ; and others, against it ; Warren v. Whitney et al., 24 Maine R. 561 ; Valentine v. Foster, 1 Metcf. R. 520 ; Snevily v. Read, 1 Wat. R. 396 ; the law is probably, upon principle, with the former cases ; for of the latter, Valentine v. Foster, was a promise made by a witness, subsequent to a release, made in order to qualify him for giving testimony, and the court said that it would destroy all confidence in evidence given under such circumstances, if a subsequent promise by the witness, could revive bis lia- bility ; and another, Snevily v. Read, was a case where a creditor had received satisfac- tion of his debt, by taking the body of his debtor, whom he subsequently released from arrest, and the debtor afterwards promised to pay ; which was held not sufiicient to sup- port an action, for the arrest had been a sat- isfaction of the prior debt, and oonsequently, OF CONTRACTS. 141 by the modern bankrupt acts,{k) to be made in writing signed by the bankrupt, or by some person thereto lawfully authorized by him in writing; and the Bankrupt Law Consolidation Act, 1849, rendered all such promises void;(r) whilst the last bankrupt act on this as on most points appears far from clear.(m) So a simple contract debt, which would otherwise have been barred by the Statute of Limitation8,(?i) from having been incurred upwards of six years, may be re^dved by a subsequent promise to pay, or even by an unconditional acknowledgment of the debt;(o) but by statutes such promise or acknowledgment must be made or contained by or in some writing, to be signed by *the ^^^qt party chargeable thereby, or by his agent.(^) And in ^ -1 like manner a debt incurred or contract made by a person dur- ing infancy, and voidable on that account, may be confirmed by an express promise or ratification made when of full age;(9) although such a promise or ratification must now, by the statutes just mentioned,(r) be made by some writing signed by the party to be charged therewith, or his agent. (k) 6 Geo. IV, e. 16, s. 131 ; 5 & 6 Vict. c. 122, s. 43. (/) Stat. 12 & 13 Vict. 106, s. 204 ; Kidson v. Turner, 3 H. & N. 581. (m) Compare sec. 164 of stat. 24 & 25 Vict. c. 134, with sec. 204 of stat. 12 & 13 Vict. c. 106. {>i) Stat. 21 Jac. I, c. 16, s. 3. (o) Bac. Abr. tit. Limitations of Actions (E) ; Prance v. Simpson, 1 Kay, 678 ; Sidwell V. Mason, 2 H. & N. 306, 310 ; Holmes v. Mackrell, 3 C. B., N. S. 789, E. C. L. R. vol. 71 ; Cornforth v. Smithard, 5 H. & N. 13 ; Francis v. Hawkesley, 1 E. :. Rep. 118 ; Cleave v. Jones, 6 Ex. Rep. 573; Bamfield v. Tupper, 7 Ex. Rep. 27; Fordham v. Wallis, 10 Hare, 217; Nash V. Hodgson, 1 Kay, 650 ; Edwards v. Janes, 1 Kay k John. 534. (c) Sect. 3. ' See ante, p. 38, note (1). 148 OF CHOSES IN" ACTION. tractor or co-debtor will not deprive a debtor of the benefit of the Statute of Limitation8.((/) Lord Tenterdeu's Act further enacts, r*7Q"i ^^ ^^® been already mcntioned,(e) that no action *8hall '- -'be maintained whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification after full age of any promise or simple contract made during infancy, unless such promise or ratification shall l)e made by some writing signed by the party to be charged therewith. And now the signature of an agent is suf- ficient.(/) And it is further enacted, (^) that no action shall be brought whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade or dealings of any other person, to the intent or purpose that such other person may obtain credit, money or goods iqoon, unless such representation or as- surance be made in writing signed by the party to be charged therewith. There appears to be some error in the word " upoii'^ in this enactment, which, as it stands, is 8uperfluous.(/i) And it has been doubted whether a representation made to a purchaser by the trustee of some property, that the property was iucumber- ed to a less extent than was actually the case, was a representation concerning the abiUbj of the vendor within the meaning of the statute.(z) The better opinion seems to be, that such a represen- tation is within the statute, and ought consequently to be obtained in writing. In addition to those contracts which by statute are required to be in wi'iting, there exists a peculiar class of contracts, which in their nature are expressed in writing, and for which a considera- tion is presumed to have been given till the contrary is proved. (A) These are bills of exchange and promissory notes.(?) A bill of ^^ exchange *is a written order from one person to another '- -^ to pay to a third person, or to his order, or to the bearer, a (d) Stat. 19 & 20 Vict. c. 97, s. 14, not retrospective ; Jackson v. Woolley, 8 E. & B. 784, E. C. L. R. vol. 92. (e) Stat. 9 Geo. TV, c. 14, a. 5, ante, p. 73. (g) Stat. 9 Geo. IV, c. 14, s. 6. (/) Stat. 19 & 20 Vict. c. 97, s. 13. (/i) See 1 Mee. k Wels 104, 123. (0 See Lyde v. Barnard, 1 Mee. & Wells. 101; Swann v. Phillips, 8 Ad. & Ell. 457, E. C. L. R. vol. 35. (yt) See Mills v. Barber, 1 Mee. A Wels. 425. (/) See Byles on Bills, and Bayley on Bills. OF CONTRACTS. 149 certain sum of money. The person making the order is called the di-awer, the person on whom it is made the drawee, and the person to whom the money is payable the payee. The bill is sometimes made payable to the drawer himself, or to his order, or to him or bearer. If the person on whom the bill is drawn undertakes to pay it, he writes on it the word " accepted,"^ with his signature, and is then called the acceptor. A promissory note, or note of hand, as it is sometimes called, is a written promise from one per- son to pay to another, or to his order, or to bearer, a certain sum of money. The person making the promise is called the maker of the note. ISlo negotiable or transferable bill or note can be law- fully drawn or made for any sum under 20s.;(nif but any person may now draw upon his banker, who shall bona fide hold money for his use, any draft or order for the payment to the bearer, or to {m) Stat. 48 Geo. Ill, c. 88, s. 2. 1 The word "accepted," should, in accord- ance with the cu.stom of merchants, be written across the face of the bill, over the signature of the acceptor. 2 Very few restrictions of this nature exist within the United States, and even in those States where provisions of this kind are in force, they have a view rather to obtaining a protest, or recovering damages, than to an absolute prohibition. Thus, in Alabama, "every bill of exchange, of the sum of $20 and upwards, drawn in, or dated at, or from any place in" the State, may be protested for non-acceptance, or non-payment ; Clay's Alaba. Dig. 381 . In Maine, " if a bill of ex- change be drawn, accepted or indorsed, . . . for one hundred dollars or more, and payable in" the " State, at a place seventy-five miles distant from the place where drawn, the dam- ages against the acceptor, drawer, orindorser, over and above the contents of the bill and interest, shall be one percent, on its amount ;" Revis. Stat, of Maine (1857), pp. 519, 520; and a similar provision- exists in Massachu- setts; Revis. Stats, of Ma.ss. (1800), p. 294. By the laws of New Jersey, bills of exchange drawn within the State, upon any person within the State, for eight dollar.'' or upwards, may be protested for non-acceptance or non- payment; Nixon's Dig. Ls. N. J. (1855), p. 667. But two of the States, Massachusetts and South Carolina, prohibit the negotiating of notes under a certain sum, the first limiting them to five dollars, under a penalty of fifty dollars ; and the latter to one dollar, under a penalty of ten dollars ; the prohibition in South Carolina, being also extended to bills of exchange; Revis. Stats, of Mass. (1860), p. 810 ; Stats, of S. C, vol. 6, p. 34. The only other enactments in the United States having any reference to this point, are those designed to prevent the issuing of notes, intended to perform the functions of currency, by others than corporations, specially created by authority of law, with this power. Thus, in Pennsylvania, by the 2d sec. of the act of March 22, 1817, "No incorporated body, public officer, association or partnership, or private individual, other than such as have been expressly incorporated or established for the purpose of banking, shall make, issue, reissue or circulate, any promissory note, ticket, or engagement of credit in the nature of a banknote, of any denomination oramount whatsoever," &c. ; Purd Dig. (186] ), p. 94, see. 59. Similar provisions are in operation in many of the other States; Revis. Stats, of N. Y., vol. 2, p. 981 ; Revis. Stats, of Mass. (18(50), p. 810 ; Revis. Stats, of Ohio (1860). vol. 1, pp. 152, 153. 150 OF CHOSES IN ACTION. order on demand, of any snni of money less than 20.9.(7?) Bills and notes under 5^. cannot be made payable to bearer on demand, and were formerly subject to other stringent restrictions,(o)' which {n) Stat. 23 & 24 Vict. c. Ill, s. 19. (o) Stat. 17 Geo. Ill, c. 30 ; 7 Geo. IV, cf 6, s. 4. 1 In connection with the subject of negotia- ble or transferable bills or notes, the recent English case of Bellamy et al. v. Majoribanks et al., 7 Exch. R. 389, relative to crossed checks, may not be entirely devoid of interest. The plaintiffs in this case, " were trustees of a gentleman named Frank ; . . . they had opened an account with the defendants, Messrs. Coutts & Co., for the purpose of the trust. A suit was pending in the Court of Chancery with reference to the trust, in which Mr. Triston acted as solicitor for the plain- tiffs. The other parties to the suit were the next of kin of Mr. Frank, and a Mr. Geary acted as solicitor for them. In June, 1845, Mr. Geary brought to Mr. Triston a check upon Messrs. Goutts, written out by him, for 2596/. 17*., to be signed by the plaintiffs. It was, when delivered to Mr. Triston, in the common form. Mr. Triston sent the check to the plaintiff, Mr. Bellamy, at Brighton, who returned it signed, with the following addition in his own handwriting, namely, at the end of the body of the check, the words : 'General unpaid costs account,' and crossed as follows, ' Bank of England, for account of Accountant-General.' Mr. Triston then sent it to the other trustee (the plaintiff, Mr. Foster), to be signed by him, and having re- ceived it back, delivered it to Geary. In point of fact, the department of the Bank of England, in which the business of the Ac- countant-General is conducted, would not have received this check, it being the rule not to receive any, except one drawn on the Bank of England itself: and this rule is well known among the London bankers. Upon the day on which Geary received the check, he struck out the cro.«sing made by Mr. Bel- lamy, by running a jien through it, leaving it, however, perfectly legible, and crossed the check a second time, with the name of Messrs. Gossling & Co., his own bankers, and paid it into their bank, to the credit of his own account. Upon the following day, the clerk of Messrs. Gossling presented it for payment at Messrs. Coutts & Co., who paid it, and charged it to the debit of the plaintiffs' ac- count. The money was placed by Messrs. Gossling to the credit of Geary, in his own account with them. He never paid the money to the Accountant-GeneraJ, and the plaintiffs were obliged to make it good. The following is a copy of the check, as produced at the trial." London, Messrs. Coutts & Pay to Edward Bearer, two thou- and ninety - six shillings (General count.) £2596: 17: 0. June 23, 1845. Co. Bryant Geary, or sand five hundred pounds, seventeen unpaid Costs Ac- Thos. C. Bellamy. Chas. J. Foster. Parke, B. " Where a check is crossed, bankers generally refuse to pay it to any one except a banker ; and if they do pay it to a person not a banker, they consider that they do it at their peril, in the event of the party, to whom the payment was made, not being entitled to receive it. That the object is to secure the payment, not to any particular banker, but to a hanher, in order that it may be easily traced, for whose use the money was received ; and that it was not intended thereby, to at all restrict the negotiability or circulation of the check, but merely to compel the holder to present it through a quarter of known respectability and credit. We are strongly inclined to think that, on a full in- quiry, the usage will turn out to be no more than this ; and, considering the custom in this point of view, the crossing is a mere memo- randum on the face of the check, and forms no part of the instrument itself, and in no way al- ters its effect. There can be no doubt that such a usage is highly beneficial to the public. These instruments are, in their essential char- OF CONTRACTS. 151 are now repealed for three- years from the 28th of July, 1863, and until the end of the then next session of Parliament. (2>) Bills and notes payable to bearer on demand are also prohibited from being issued by bankers, except by the banks and under the restrictions mentioned in the act passed to regulate the issue of bank notes.(g') Bills or notes payable to A. B. or order are transferable by a written order indorsed thereon by A. B. The mere signature by A. B. of his name on the back, followed by his delivery of the bill or note, (r) is however sufficient *for this pupose. This is called an indorsement in blank; and after such an indorse- •- -I ment, the bill or note, together with the right to sue upon it, may be transferred by mere delivery.(5) Any holder of the bill may, consequently, after such an indorsement, enforce payment to him- self The indorsement may, however, be special, as "Pay C. D. or order, A. B." And in this case the bill or note, in order to become transferable, must be indorsed by C. D. But if a bill be once indorsed in blank, it will always be payable to the bearer by any of the parties thereto, although it may subsequently be spe- cially indorsed; but the special indorser will not be liable to the bearer without the indorsement of the person to whom he has specially indorsed it.(^)^ A bill or note payable to bearer is trans- ferable by mere delivery without any indorsement. (p) Stat. 26 & 27 Vict. c. 105. (r) Bromage v. Lloyd, 1 Ex. Rep. 32. (?) Stat. 7 & 8 Vict. c. 32, ss. 10, 11. (s) Peacock v. Rhodes, 2 Doug. 333. (0 Smith V. Clarke, 1 Peake, 295 ; Walker v. Macdonald, 2 Ex. Rep. 527. acter, payable to bearer, they are in many through a banker, as a condition precedent, respects treated as bank notes It is but he ought not to complain if the drawee manifestly, therefore, a great safeguard and does not pay without previous inquiry, protection to the real owner, that there should There is really no restriction upon its nego- exist the means of tracing and ascertaining, liability ; but it is, in our opinion, a reasona- for whose use the money paid on the check is ble and lawful practice and usage, in order received, and to whom the money actually to secure, as far as possible, payment of goes ; and the payment through a banker se- checks to honest and l>07ia fide, holders." cures this object. ... We think there is no i But the holder of a note indorsed in legal objection to the custom, if thus limited, blank, may fill it up with any contract consis- and understood, upon the ground of its being tent with the character of an indorsement ; repugnant to the essential quality of a check, Byles on Bills, Am. ed. p. 116, note 2; namely, its negotiability by delivery. There Caruth v. Thompson, 16 B. Mon. R. 572 ,• i8 no obligation upon any one to receive pay- Webster ?A Cobb. 17 III. R. 459; Watkins ment by a check, whether it be crossed or v. Kirkpatrick, 2 Dutch. R. 84 ; Becker v. not crossed ; but if a man receive a crossed Levy, 2 Am. L. Reg. 444. But, see, Newell v, check, he .seems to us, not indeed to incur Williams, 5 Sneed's R. 208. the obligation of presenting it for payment 152 OF cnosES in action. The effect of accepting a bill, or making a promissory note, is to render the acceptor or maker primarily liable to pay the same to the person entitled to require payment. The effect of drawing a bill is to make the drawer liable to payment, if the acceptor make default. But in order to charge the drawer of a foreign bill, it must, by the custom of merchants, be protested by a notary public. (i<) This protest is a declaration by him in due form that payment has been demanded and refused. A protest, however, is unnecessary for an inland bill or promissory note.(a:) The efl'ect of indorsing a bill or note is to make the indorser also liable to payment, if the acceptor of the bill or maker of the note should make default. The indorsement operates as against the indorser as a new drawing of the bill by *him,(?/) An '- "-' indorsement, however, may be made without recourse to the indorser, or " sans recours," as it is generally expressed, in which case the indorser avoids all personal liability.(^) The drawer of a bill, or the indorser of a bill or note, will, however, be discharged from all liability, unless the person requiring pay- ment should, within a reasonable time, give him notice that the bill or note has not been paid, or, as it is termed, has been dis- honored, and give him to understand, either expressly or by implication, that he looks to him for payment.(a) In consequence of a consideration being presumed to have been given for every bill or note till the contrary is shown, it follows, that if a bill or note should have been drawn, accepted or indorsed without any consideration, or for a consideration which is illegal, a bona fide holder for valuable consideration, or any indorsee from him, may, nevertheless, enforce payment ; for when he took the security, he was entitled to rely on the legal presumption of a proper con- sideration having been given. (6)^ It is stated by Sir William (h) Gale V. Walsh, 5 T. Rep 239. (x) Windle v. Andrews, 2 Barn. & Aid. 696. (y) Penny r. Innes, 1 Cro. Mee. & Rose. 441. (z) Byles on Bills, 117, 6tli ed. (a) Hartley v. Case, 4 Barn. . Linn et al., 1 How. (U. S.) R. 104; so also, if there is no suspicion leading to ihe belief, that the alterations were made subsequent to the ex- ecution, it will be presumed that they were made before; Whitsell v. Womaek, use, i) for it is considered to be equally unfit that a man should be allowed to take advantage of what the law says he ought not to do, whether the thing be prohibited be- cause it is against good morals, or whether it be prohibited because it is against the interest of the state.^ Whether, therefore, the (k) Collins V. Blantern, 2 Wils. 341, 347; S. C. 1 Smith's Leading Cases, 154; Paxton V. Popham, 9 East, 408 ; Pole v. Harrobin, 9 East, 416, n. ; De Begnis v. Armistead, 10 Bing. 107, E. C. L. R. vol. 25 ; S. C. 3 Moo. & Scott, 516. (/) See 1 Black. Com. 64, 57. (m) Aubert v. Maze, 2 Bos. & Pul. 374, 375 ; Cannan v. Bryce, 3 B. & Aid. 183, E. C. L. R. vol. 5; Bensley v. Bignold, 5 Barn. & Aid. 335, 341, E. C. L. R. vol. 7; Cope v. Bow- lands, 2 Mee. & Wels. 149, 157; Fergusson «. Norman, 5 Bing. N. C. 76, 84, E. C L. R. vol. 35. McKee v. Hicks, 2 Dev. L. R. 379 ; Harri- most universal use for some purposes, for ex- sons V. Tivernans, 4 Rand. R. 187 ; or, that at ample, the transfer of stocks and loans, will least, there must be some proof of authority probably induce the courts to recognize their to fill the blanks ; Clendaniel v. Hastings, 5 validity. See Vliet v. Camp, 13 Wis. R. 198. Harring. R. 508. ^ There is probably no principle of law In regard to letters of attorney, for com- better settled, than that every contract must mercial, banking, and ordinary business pur- have a legal consideration ; Pounds v. Rich- poses, the necessities of trade have led to the ards et al., 21 Ala. R. 424; Marey v. Craw- adoption of such instruments with blanks, to ford, 16 Conn. R. 552 ; Coolidge v. Blake, 15 a very large extent. The great convenience Mass. R. 430 ; Wheeler v. Russell, 17 Id. of their employment, together with their al- 258 ; Wilson et al. v. Education Soc, 10 OF CONTRACTS. 159 object of a contract be unlawful because morally wrong, or un- lawful by the policy of the common law, or unlawful because a Barb. S. C. R. 308 ; Weeks v. Lippencott, 42 Pa. St. R. 474 j Stanley v. Nelson, 28 Ala. R. 514; Fireman's Ch. Association v. Berg- haus, 13 La. An. R. 209 ; and it is immate- rial whether the illegality of the consideration consists in its being prohibited by statute, or in its being contrary to good morals, or against public policy ; whether it be vialum, luohibitum or malum in se ; for under either aspect, the contract is equally void. The leading case on this subject is, Armstrong v. Toller, 11 Wheat. R. 268; S. C. Toilers. Armstrong, 4 Wash. C. C. R. 297, in which Marshall, C. J., says, " Questions upon il- legal contracts have arisen very often, both in England and in this country ; and no principle is better settled, than that no action can be maintained on a contract, the consid- eration of which is either immoral in itself, or prohibited by law." In like manner, if the original considera- tion of a contract is in any respect unlawful, any subsequent agreement founded upon it, and by which it is to be carried into effect, is likewise unlawful ; but if the subsequent agreement can be entirely separated from the former illegality, it is valid ; Walker v. Bk. of Washington, 3 How. R. 62 ; Warren v. Crabtree, 1 Greenleaf R. 167 ; Smith v. Bar- stow, 2 Doug. R. 16.S ; Ejrly v. Mahon, 19 Johns. R. 147 ; Bell v. Quinn, 2 Sandf. S. C. R. 146 ; Columbia Bridge Co. v. Kline, Bright R. 320 ; Terry v. Bissell, 26 Conn. R. 23 ; Bates v. Watson, 1 Sneed's R. 376 ; Shelton v. Marshall, 16 Texas R. 344 ; Bou- telle V. Melendy, 19 N. H. R. 196 ; Barton V. Port Jackson & Union Falls Plank Road Co., 17 Barb. R. 397 ; and so too, if the con- sideration is part lawful, and part unlawful, the good shall stand, and the bad only be avoided, unle.s8 it be of such a nature that the good and bad cannot be separated, in which case the whole contract will be void ; Nich- olson V. Fearson, 7 Pet. R. 103 ; Moncurev. Dermott, 13 Id. 345 ; Whitsell v. Woinack, 8 Ala. R. 466 ; Pond v. Smith, 4 Conn. R. 297 ; Terry et al. v. Olcott, Id. 442 ; Gardner v. Mazey, 9 B. Mon. R. 90 ; Irvine v. Stone et al. 6 Cush. R. 508 ; Ilinds v. Chamberlain, 6 N. H. R. 225 ; Carleton v. Whitcher, 5 Id. 196 ; Roby v. West, 4 Id. 285 ; Crawford v. Merrell, 8 Johns. R. 253 ; Township of Not- tingham V. Giles, 1 Pa. R. 120 ; Vroom v. Exrs. of Smith, 2 Green's R. 479 ; Hook v. Gray, 6 Barb. Super. C. R. 398 ; Brown v. Tappan, 9 Wend. R. 175 ; Hamilton v. Can- field, 2 Hall's R. 526j Van Alstyne v. Wim- ple, 5 Cow. R. 162 ; Frazier v. Thompson, 2 Wat. & Serg. R. 235 ; Yundt v. Roberts, 5 Serg. & Raw. R. 138 ; Filson's Trustees v. Himes, 5 Pa. St. R. 452 ; Thomas v. Brady, 10 Id. 170 ; Buck V. Albee, 26 Vt. R. 184 ; Gelpcke v. Dubuque, 1 Wallace's U. S. R. 221 ; Carleton v. Woods, 8 Foster's R. 290 ; Rose V. Truax, 21 Barb. R, 361 ; and although a contract tainted with fraud, may be ratified or confii med, without a new contract founded on a new consideration ; yet when the contract is in substance, or essential form, illegal, neither party can ratify it, because the wrong done is against the State, and it only can forgive it ;" Pearsoll v. Chapin, 44 Pa. St. R. 15 ; Boutelle v. Melendy, 19 N. H. R. 196. A distinction is to be noted on this subject between contracts executory, and those execu- ted ; in the former case the contract will not be enforced, by reason of the unlawful con- sideration or promise, and in the latter case the courts will not grant relief, but will suf- fer the status of the parties to remain, and particularly so, where the application is made by the party who has been guilty of the un- lawful act ; Adams v. Barrett, 5 Geo. R. 608 ; Musson et al. v. Fales et al., 16 Mass. R. 334 ; Ball v. Gilbert, 12 Metcf. R. 397 ; Skin- ner V. Henderson, 10 Misso. R. 205 ; Knee- land V. Rogers et al., 2 Hall's R. 679 ; Greene V. Godfrey, 44 Maine R. 25. But the guilty party, will not be allowed to retain the fruits of the contract, at the expense of the innocent, and will be liable, not upon any valid portion of the express contract, but on the implied contract, to account for money or property received ; Tracy v. Talmadge, 4 Sneed's R. 429 ; Hunt v. Turner, 9 Texas R. 385. But a contract which has been made in a foreign couTitry, and is in accordance with the laws of the place where it was made, may 160 OF CHOSES IN ACTION. penalty is attached to it by any particular statute, in every case the contract is void; and it is indifterent, under such circumstances, be carried into effect in this country, although contrary to our hiws ; unless it was entered into with the intention of being perfected here, in fraud of our statutes ; or unless its en- forcement would result in injury to our citi- zens, or afford a pernicious example ; Green- wood V. Curtis, 6 Mass. R. 358 ; Thompson V. Ketchum, 8 Johns. R. 189 ; Hicks v. Brown, 12 Id. 142; Sconelle v. Canfield, 14 Id. 338 ; Lodge v. Phelps, 1 Johns. Cas. 139 ; Ruggles V. Keeler, 3 Johns. R. 263 ; Emory V. Qreenough, 3 Dal. R. 370, n. ; Adams v. Gay, 19 Vt. R. 358 ; Smith v. Godfrey, 8 Fos- ter's R. 379 ; Thatcher v. Morris, 1 Kernan's R. 437. Where a statue contains a provision for the performance of a certain thing, other ways of accomplishing that thing are not necessarily void : if, indeed, the statute expressly says that the act shall be done in the manner pointed out, and not otherwise, then all other means are unlawful, but if it only directs, and does not enjoin, the matter may be ac- complished in any other way, provided it be not contrary to the principles of the common law, or to good morals or public policy ; Whitsell V. Womack, use, Ac, 8 Alaba. R. 466 ; Lugg V. Burgess et al., 2 Stew. R. 509 ; Bates et al. v. The Bank of the State of Ala- bama, 2 Alaba. R. 487 ; Postmaster-General V. Early, 12 Wheat. R. 136 ; Smith v. The United States, 5 Pet. R. 293 : Farrar et al. V. The United States, Id. 273 ; Justices of Christian v. Smith et al., 2 J. J. Marsh. R. 474 i Fant et al. v. Wilson, 3 Mon. R. 343 ; McCormick v. Young, 3 J. J. Marsh. R. 180 ; Baker v. Haley et al., 5 Greenf. R. 240 ; Kavanagh v. Saunders et al., 8 Id. 422 ; Pur- ple V. Purple et al., 5 Pick. R. 226 ; Vroom V. Exrs of Smith, 2 Green's R. 479 ; Ellis v. Robinson, 2 Pa. R. 707 ; Howard v. Black- ford, Id. 777 ; Day v. Hale, 7 Halst. R. 204 ; Woolwich V. Forrest et al., 1 Pa. R. 115 ; Township of Middleton v. McCormick et al., 2 Id. 200 ; Doll V. Bull et al., 2 Johns. Gas. 239 ; Cloasen v. Shaw, 5 AVat. R. 468 ; Far- mer's Bk. of Reading v. Boyer, 16 Serg. & Raw. R. 4 J Anderson v. Foster, 2 Bail. R. 601 ; Hooe V. Tebbs et al., 1 Munf. R. 501. And even where an act is expressly prohib- ited by the laws, it does not follow that every contract which may be tainted with the ille- gal matter is absolutely void, but it depends in each case upon a sound construction of the statute prohibiting it. Take, for instance, the subject of usury, which is generally, through- out the Union, forbidden by statutory enact- ment, yet usurious contracts are not usually held absolutely void, but the decisions on the subject are as various as the statutes, and in every case it depends upon the construction of the statute, whether the contract shall be void, or only void pro tanto. In a word, if the law does not avoid the instrument or con- tract, on account of such illegality, it will be valid for the legal, and void only for the ille- gal part of it ; De Wolf v. Johnson et al., 10 Wheat. R. 367 ; Flecknor v. The U. S. Bank, 8 Id. 338 ; Higginson et al. v. Gray et al., 6 Metcf. R. 212; Bank of Washington v. Ar- thur et al., 3 Graft. R. 173; Tracy v. Tal- madge, 4 Sneed's R. 429. Thus in Massa- chusetts and New Hampshire, three times the usurious interest is to be deducted from the claim, which will then be good for the bal- ance ; Upham v. Brimhall, 1 1 Metcf. R. 526 ; Brigham v. Moreau, 7 Pick. R. 40 ; Parker V. Biglow, 14 Id, 436 ; Sumner v. Williams, 1 Metcf. R. 398 ; IJrng v. Howard, 1 Cush. R. 137 ; Simons v. Steele, 36 N. H. R. 73. In Pennsylvania, Kentucky, Maine, Vermont, Tennessee, Ohio, Missouri, Illinois, Alabama, Arkansas, and Michigan, the interest over and above that which is allowed by law, only, is forfeited, and an action may be brought for principal and lawful interest ; Wycoff v. Longhead, 2 Dal. R. 92; Turner v. Calvert, 12 Serg. & Raw. R. 46 ; Berry v. Walker, 9 B. Mon. R. 467; Larrabee v. Lambert, 32 Maine R. 97 ; Elworth v. Mitchell, 31 Id. 249 ; White V. The Franklin Bank, 22 Pick. R. 181 ; Hawkins v. Welsh, 8 Misso. R. 490 ; The State of Ohio, for the use, Ac, v. Taylor et al., 10 0. R. 378 ; Busby v. Finn, 1 0. R. N. S. 410 ; Isler v. Brunson, 6 Hump. R. 277 ; Boyers v. Boddie, 3 Id. 666 ; Weather- hedd V. Boyers, 7 Yerg. R. 545 ; Turney v- The State Bank, 5 Hump. R. 407, 410 ; Ste. OF CONTRACTS. 161 whether the contract be made by deed, *or by parol merely. Thus if a bond under seal be given by a man to a woman '- -^ vens V. Fisher, 23 Vt. R. 272 ; Burton v. Johns. R. 284 ; Bridge v. Hubbard, 15 Mass. Blin, 23 Id. 151 ; Nichols et al. v. Bliss, 22 R. 96 ; Moter v. Dorsett, liVIcCord's R. 350 ; Id. 581 ; Heath v. Page, 48 Pa. St. R. 130 ; Clark v. Badgely, 3 Halst. R. 233 ; but, if a Nichols V. Stewart, 21 111. R. 106 ; Nobler, subsisting contract is good and legal, it can- Walker, 32 Ala. R. 456 ; Ruddell v. Ambler, not be destroyed by a subsequent agreement 18 Ark. R. 369 ; Farmers' Bk. v. Burchard, as to usurious interest ; Stebbins v. Smith, 4 33 Vt. R. 346 ; Smith v. Stoddard, 10 Mich. Pick. R. 97 ; Swartwout v. Payne, 19 Johns. R. 148; but in Pennsylvania, formerly, if R. 294; Johnson v. Johnson, II Mass. R. any portion of the usurious interest had been 359 ; Hughes v. Wheeler, 8 Cow. R. 77 ; Rice received, the whole thing loaned was forfeited v. Welling, 5 Wend. R. 595 ; Hammond v. as a penalty, and could be recovered in a qui Hopping, 13 Id. 505 ; Mitchell v. Cotten, 2 tam action ; Philip v. Kirkpatrick, Addis. R. Fla. R. 149 ; Troutman v. Barnett, 9 Geo. 124 ; Exrs. of Pawling v. Admrs. of Pawling, R. 30 ; Williams v. Williams, 1 Har. R 255 ; 4 Yeat. R. 220 ; Large v. Passmore et al., 5 Edgell v. Stanford, 6 Vt. R. 551 ; and it is Serg. & Raw. R. 51 ; Evans «;. Negley, 13 Id. not usury, to purchase a note, bond, or other 218 ; Agnew v. McElhare, 18 Pa. St. R. 484 ; security for money, at any rate of discount, but these decisions were made under the act as there is not a contract of loan ; for usury of the 2d of March, 1723, which has since is the taking of interest at an illegal rate been repealed by the act of the 28th of May, upon a loan ; but it must be a hoimfide trans- 1858, Purd. Dig. (1861), p. 561; Fitzsimons action, and the note or bill must not have V. Baum, 44 Pa. St. R. 32. been used, or made, as a mere device to avoid In Indiana, Louisiana, Mississippi, and the statutes of usury ; Saltmarsh v. Bank, 17 South Carolina, the whole interest is forfeited, Ala. R. 761 ; S. C. 14 Id. 668 ; Brown v. Har- and the principal can only be recovered ; Bil- rison, 17 Id. 774 ; Gregory v. Bewley, 2 En"', lingsley v. The State Bank of Indiana, 3 R. 22 ; S. C. 5 Ark. R. 318; Caton v. Shaw, Port. R. 377; Lalande v. Breaux et al., 5 2 Har. & Gill's R. 13; Belden v. Lamb, 17 Ann. R. 505 ; Richards t;. Freesler, 2 Id. 265 ; Conn. R. 441 ; Freeman v. Brittin, 2 Har. R. Haynes v. Cobb, Id. 364 ; McLaurin v. Park- 191 ; Braman v. Hess, 13 Johns. R. 52 ; Mann er et al., 24 Miss. R. 511 ; Quarles v. Bran- v. Company, 15 Id. 44 ; Powell v. Waters, 17 non, 5 Strobh. L. R. 151. On the subject of Id. 176 ; Cobb v. Titus, 13 Barb. S. C. R. 47 ; usury, see generally, History of Usury, by J. Seymour v. Marvin, 11 Id. 80 ; Simpson v. B. C. Murray Pullenwidder, 12 Ired. L. R. 334; Musgrove The'principle seems to be, in accordance v. Gibbs, 1 Dal. R. 216; Parker v. Cousins, with what is above stated, that if the con- 2 Gratt. R. 372 ; so, too, to determine whether tract be part good and part bad, the good or not a loan is usurious, reference must be shall prevail and the bad be avoided, if they had to the law of the place where it was can be separated ; and the statute points out made ; Jacks v. Nichols, 5 Barb. S. C. R. 38 ; what is good and what bad, or determines, Sherrill u. Hopkins, 1 Cow. R. 103; Smith t;. that under certain circumstances, the con- Mead, 3 Conn. R. 253 ; De Wolf v. Johnson tract is to be considered entire, and that 10 Wheat. R. 367. therefore the good and bad cannot be sepa- For a further and full consideration of the ^_L rated, but the whole contract is void. If subject of contracts void because unlawful, the basis of a subsisting contract is usu- see the following cases : rious, no subsequent agreement founded As to contracts void on account of infring- upon, and inseparable from, the former con- ing some statutory provision or enactment ; tract, will be free from the taint of usury ; Hannay v. Eve, 3 Cranch's R. 242 ; Patton v. Jones V. Jackson, 14 Ala. R. 186 ; Bostford Nicholson, 3 Wheat. R. 207 ; The Julia, 8 «. Sandford, 2 Conn. R. 276 ; Gibson v. Cranch's R. 181 ; The Aurora, Id. 263 ; The Stearns, 3 N. H. R. 185 ; Tuthill v. Davis, 20 Hiram, Id. 444 ; S. C. 1 Wheat. R. 440 ; The 11 162 OF CHOSES IN ACTION. in order to induce her to cohabit with him, it is void for the im- Ariadne, 2 Wheat. R. 143 ; Craig v. The State, 4 Pet. R. 411; Fales t?. Mayberry, 2 Gallis. R. of.a ; Citmbioso v. Maffet, 2 Wash. C. C. R. 103 ; Kennett v. Chambers, 14 How. R. 39 ; Harris t,'. Runnels, 12 Id. 80 ; Munsell V. Temple, 3 Uilm. R. 93 ; Wheeler v. Rus- sell, 17 Mass. R. 257; Bank v. Merrick, 14 Id. 322 ; Hunt v. Knickerbocker, 5 Johns. R. 327 i Mitchell v. Smith, 1 Bin. R. 110 ; Fow- ler V. Throckmorton, 6 Blackf. R. 326 ; Steele V. Curie, 4 Dana's R. 384 ; Dickerson v. Gor- dy, 5 Rob. R. 420 ; Rand v. Tobie, 32 Maine R. 420 ; Merrick v. Bank, 8 Gill's R. 73 ; Richardson v. Company, 6 Mass. R 111 ; Wickham v. Conklin, 8 Johns. R. 220 ; Bank V. Niles, 1 Doug. R. 411 ; Maybin v. Conlon, 4 Dal. R. 298 ; Duncanson v. McClure, Id. 308 ; Nichols v. Ruggles, 3 Day's R. 145 ; Pratt V. Adams, 7 Page's R. 615 ; Odineal v. Barry, 24 Miss. R. 9 ; Merrell v. Legrand, 1 How. (Mo.) R. 150 ; Callagan v. Hallett, 1 Caines's R. 104 ; Ludlow v. Van Rensselaer, 1 Johns. R. 94 ; Goodale v. Holridge, 2 Id. 193 ; Walt V. Harper, Id. 386 ; Love v. Pal- mer, 7 Id. 159 ; Richmond v. Roberts, Id. 319; Read v. Pruyn, Id. 426; Strong v. Tompkins, 8 Id. 98 ; Yeomans v. Chatterton, 9 Id. 295 ; Bruce v. Lee, 4 Id. 410 ; Graves V. Worrall, 14 Id. 146 ; Griswold v. Wadding- ton, 15 Id. 57, S. C. 16 Id. 438 ; Seamen v. Waddington, 16 Id. 510 ; Beddis v. James, 6 Bin. R. 321 ; Eberman v. Reitzel, 1 Wat. & Serg. R. 181 ; Fox v. Mensch, 3 Id. 446 : Kepner v. Keefer, 6 Wat. R. 231 ; Yerger v. Rains, 4 Humph. R. 259, 267 ; Ohio Life and Insurance Trust Company v. The Merchants' Insurance and Trust Co., 11 Id. 1; Heirs of Hunt V. Heirs of Robinson, 1 Tex. R. 758 ; Elkins i). Parkhurst, 17 Vt. R. 106 ; Spalding V. Preston, 21 Id. 9 ; Terrett et al. v. Bartlett, Id. 184 ; Case v. Riker, 10 Id. 482 ; Meyers V. Byerly, 45 Pa. St. R. 368. As to contracts void on account of being contrary to good morals, or because against public policy, or principles of the common law, see as well some of the above cases, as the following : Greenwood v, Exrs. of Col- cock, 2 Bay's R. 67; 'Denton v. Erwin et aL, 6 (La.) Ann. R. 317 ; Denton v. Wilcox, 2 Id. 66 ; Slidellj;. Pritchard et al.. 5 Rob. R. 101 ; De Sobry v. De Laistre, 2 Har. & Johns. R. 228 ; Commonwealth v. Harrington, 3 Pick. R. 26 ; Columbia Bank v. Haldeman, 7 Wat. & Serg. R. 235 ; Pulse v. State, 5 Humph. R. 108 ; Hale v. Henderson, 4 Id. 199 ; Allen v. Dodd, Id. 132; Logan v. Austin, 1 Stew. R. 478 ; Grant et al. v. McLester, 8 Geo. R. 553 ; Harralson v. Dicking, 2 Car. L. Repos. 66 ; The First Congregational Church of the City of New Orleans v. Henderson, 4 Rob. R. 209 ; Shaw v. Reed, 30 Maine R. 105 ; Denny V. Lincoln, Admr., 5 Mass. R. 387; Churchill V. Perkins et al.. Id. 541 ; Parsons v. Wins- low, 6 Id. 169 ; Boynton v. Hubbard, 7 Id. 112; Swett et al. v. Poor et al., 11 Id. 549 ; Ayer v. Hutchinson, 4 Mass. R. 370 ; Belding V. Pitkin, 2 Caines's R. 149 ; Thurston v, Percival, 1 Pick. R. 415 ; Shelton v. Homer et al., 5 Metcf. R. 462 ; Worcester v. Eaton, 11 Mass. R. 368 ; Doughty v. Owen, 24 Miss. R. 407 ; Plummer v. Smith,-5 N. H. R. 553 ; Sayles v-. Sayles, 1 Fost. R. 312 ; Sterling v. Simmickson, 2 South R. 756; Fanshor v.- Stout, 1 Id. 312 ; Sharp et al. v. Teese, 4 Halst. R. 352 ; Gulick et al. v. Ward et al., 5 Id. 87 ; Jones v. Caswell, 3 Johns. Cas. 29 ; Doolin V. Ward, 6 Johns. R. 194 ; Wilbur v. How, 8 Id. 444 ; Thompson v. Davies, 13 Id. 112; Smith et al. v. Applegate, 3 Zabr. R. 352 ; Whitaker v. Cone, 1 Johns. Cas. 58 ; Sherman v. Boyce, 15 Johns. R. 443 ; Tux- bury V. Miller, 19 Id. 311 ; Hatch v. Mann, 15 Wend. R. 44 ; Preston v. Bacon, 4 Conn. R. 471 ; Shattuck v. Woods, 1 Pick. R. 175 ; Bassier v. Pray, 7 Serg. & Raw. R. 447 ; Car- roll V. Tyler, 2 Har. & G. R. .54 ; Smith v. Smith, 1 Bail R. 70 ; Harris v. Ross's Exrs. 10 Barb. Sup. C. R. 489 ; Hartzfield v. Gar- den, 7 Wat. R. 152 ; Chippenger u. Hopbaugh, 5 Wat. & Serg. R. 315 ; Pingry v. Washburn, 1 Aik. R. 264 ; Cameron v. McFarland, 2 Car. L. Repos. 415 ; Stout v. Wren, 1 Hawk's R. 420 ; Oberman v. Clemmons, 2 Dev. & Bat. L. R. 185 ; Barbee v. Armstead etal., 10 Ired. L. R. 530 ; Roll V. Raguet, 4 0. R. 418 ; Cou- lon V. Morton et al., Exrs., 4 Y-eat. R. 24 ; Schenck v. Mingle, 13 Serg. & Raw. R. 29 ; Lidenbender v. Charles's Admr. 4 Id. 15] ; Crook V. Williams, 20 Pa. St. R. 344; Oorley V. Williams, 1 Bail. R. 588 ; Vincent v. ■ Groom, 1 Yerg. R. 430 ; Bowers v. Bowers, 28 Pa. St. R. 74. OF CONTRACTS. 163 morality of its object.(w) But a bond given to a woman in respect of the injury she has sustained by past cohabitation is valid.(o) For in this case the object is not immoral: and the consideration implied by the bond being a deed under seal supplies the want which would otherwise exist of a proper consideration. (j3) If a contract have more than one object, and some of the objects are lawful whilst the others are unlawful, the unlawful objects will not vitiate the others,(ry) provided the good part be separable from, and not dependent upon, that which is bad;(r) unless of course the whole contract should be rendered void by any enactment to the effect that all instruments containing any matter contrary thereto shall be void, in which case everything connected with the instrument will be vitiated. (6)* And if the good part of a contract be inseparable from the bad. as if a contract be made partly in consideration of the paymejit of money (which would be good), and partly for a consideration whose object ]s illegal, the illeo-al part of the consideration will vitiate the good, and render the whole contract void.(i!) *The instance above given of a bond for future cohabi- tation is an example of a contract void on account of its ^ ^"J object being malum in se, or morally wrong. In the same man- ner, no action can be maintained on any contract for the sale (k) Walker t;. Perkins, 1 Wm. Black. 517; S. C. 3 Burr. 1568; Gray «. Mathias 5 Ves 286, (0) Turner v. Vaughan, 2 Wils. 339 ; Hill v. Spencer, 2 Amb. 641 ; Gray v. Mathias, 5 Ves. 286 ; Hall v. Palmer, 3 Hare, 532 ; Kyne v. Moore, 1 Sim. & Stu. 61 ; 2 Sim. & Stu. 260 ; Inge v. Moseley, 6 Barn. & Ores. 133, E. C. L. R. vol. 13 ; 2 Sim. 161. (p) Binnington v. Wallis, 4 Barn. & Aid. 650, 952*, E. C. L. R. vol. 61 ; a7ite, p. 69. {q) Gaskell v. King, 11 East, 165; Wigg ij. Shuttleworth, 13 East, 87; Howe v. Synge, 15 East, 440 ; in all which decisions unlawful covenants to pay the property tax were held not to vitiate other valid covenants in the same instrument. See also, Kerrison v. Cole, 8 East, 231; Mallan v. May, 11 Mee. & Wels. 653; Green v. Price, 13 Mee. & Wels. 695, affirmed, 16 Mee. &, Wels. 346 ; Nichols v. Stetton, 10 Q. B. 346, E. C. L. R. vol. 59. (r) See Biddell v Leeder, 1 Barn. & Cress. 327, E. C. L. R. vol. 8, decided on the old Ship Registry Act. [s) See 1 Smith's Leading Cases, 169, and the statutes recited in the preamble to 5 A 6 Will. IV, c. 41. (1) Fetherston v. Hutchinson, Cro. Eliz. 1S9 ; Bridge v. Cage, Cro. Jac. 103. See, also, per Tindal, C. J., in Waite v. Jones, 1 Bing. N. C, 662, E. C. L. B. vol. 27; Hopkins v. Prescott, 4 C. B. 578, E. C. L. R., vol. 56,. ' See ante, p. 84, note I. 164 OF CHOSES IN ACTION. or publication of any libellous or immoral book or print; (?<) A striking instance of a contract, void on account of its object being contrary to the policy of tlie common law, occurs in the case of a contract in restraint of trade. It is for the advantage of the community that every person should be allowed the full exercise of his trade or profession ; and any contract whereby a person is attempted to be restrained from his usual calling, even for a lim- ited time, is therefore absolutely void.(a:)* But a contract is not rendered void by having for its object the restraint of a person from trading in a particular place,(i/) or within a reasonable dis- tance from any particular place, (2) for he may carry on his trade elsewhere ; nor is a contract void which restrains a person from serving a particular class of customers (a) (for there are plenty of others to be found), or which binds a person to be the servant for (m) Fores v. Johnes, 4 Esp. 97 ; Stockdale v. Onwhyn, 5 Barn. & Cres. 173, E. C. L. R. vol. 11 ; S. C. 7 Dow. & Ry.<25 ; Lawrence v. Smith, Jac. 471. (x) Year Book, P. 2 Hen. V, pi. 26; Ward v. Byrne, 6 Mee. & Wels. 548; Hind v. Gray, 1 Man. & Gran. 195, E. C. L. R. vol. 39. (y) Hitchcock v. Coker, 6 Ad. & El. 438, E. C. L. R. vol. 33 ; S. C. 1 Nev. & P. 796 ; Archer v. Marsh, 6 Ad. & Ell. 959, E. C. L. R. vol. 33 ; S. C. 2 Nev. & P. 562 ; Leighton V. Wales, 3 Mee. & Wels. 545. (z) Davis V. Mason, 5 T. Rep. 118 ; Proctor v. Sergeant, 2 Man. & Gr. 20, E. C. L. R. vol. 40 ; S. C. 2 Scott, N. R. 289 ; Whittaker v. Howe, 3 Beav. .383 ; Pemberton v. Vaughan, 10 Q. B. 87, E. C. L. R. vol. 59 ; Atkyns v. Kinnier, 4 Ex. Rep 776 ; Elves v. Crofts, 10 C. B 241, E. C. L. R. vol. 70 ; Avery v. Langford, 1 Kay, 663, 667, where the cases are collected. (c) Rannie v. Irvine, 7 Man. & Gr. 969, E. C. L. R. vol. 49. 1 A contract in restraint of trade is only Palmer v. Stebbins, 3 Pick. R. 188 ; Cuppell held to be void, when such an agreement is v. Brockway, 21 Wend. R. 158 ; Rossf . Sady- against public policy ; if, therefore, the stipu- beer. Id. 166; Bowser w. Bliss, 7 Blackf. R. lations of the contract are such as to occasion 345 ; Perkins v. Lyman, 9 Mass. R. 522 ; no serious detriment to the interest of the Stearns v. Barrett, 1 Pick. R. 443 ; Law- public, the agreement will be binding; as, for rence v. Kidder, 10 Barb. S. C. R. 641; example, a covenant, made by one not to car- Mott v. Mott, 11 Id. 127 : Gilman v. Dwight, ry on a trade in a specified locality, if based 13 Gray's R. 396 ; DuflFy v. Shockey, 11 Ind. upon a consideration otherwise legal, is valid, R. 70 ; Grasselli v. Lowden, 11 0. R. (N. S.) because it is not considered of disadvantage to 349; California Steam Nav. Co. v. Wright, the public generally, particularly where the 6 Gal. R. 258 ; Kinsman v. Parkhurst, 18 other party to the contract, as is usually the How. U. S. R. 289 ; Whitney «. Slayton, 40 case, is qualified to conduct the business. Maine R. 224; Van Marter v. Babcock, 23 For a full consideration of this point, see the Barb. R. 633 ; Alcock v. Giberton, 5 Duer's following cases, which are believed to be the R. 76 ; Herchew v. Hamilton 3 Iowa R. principal of the American decisions on the 596 ; Kellogg t'.Larkin, 3 Chand. R. 133. question; Pierce v. Fuller, 8 Mass. R. 223; OF CONTRACTS. 165 life in his trade to anotlier,(6) for this is not in restraint *of r^o^n trade when it is to be carried on for his life. In a recent -' case(c) a person agreed that he would become assistant to a dent- ist for four years, and that after the expiration of that term he would not carry on the business of a dentist in London, or any of the towns or places in England or Scotland w'here the dentist might have been practising before the expiration of the service. And it was held that the covenant not to practice in London was valid ; but that the stipulation as to the other towns and places in England or Scotland was void. And according to the rule above mentioned,(c?) that where some of the objects of a contract are lawful and others unlawful, the unlawful objects will not vitiate the others, it was held that the stipulation as to practising in Lon- don was not affected by the illegality of the remainder of the agreement. The cases in which contracts may be void in consequence of their contravening some acts of Parliament are too numerous to be here specified. As an instance may be mentioned contracts by clergymen holding benefices with, cure of souls, made for the purpose of charging such benefices with any sum of money; which contracts are rendered void by a statute of Elizabeth. (e) And in these cases it has been held that any personal covenant for the payment of the money charged is not invalidated by being contained in the same deed as the attempted charge on the benefice.(/) Contracts for the sale or transfer of stock, of which the person contracting was not possessed at the time, and of which no transfer *was intended to be made, were formerly void r^r^r,-, by the Stock Jobbing Act ;(gy and money lent for the *- -^ (h) Wallis V. Day, 2 Mee. & Wels. 273. (c) Mallan v. May, 11 Mee. & Wels. 653. See also Green v. Price, 13 Mee. & Wels. 695, affirmed, 16 Mee. & Wels. 346 j Nichols v. Stretton, 10 Q. B. 346, E. C. L. R. vol. 59. (d) Ante, p. 85. (e) Stat. 13 Eliz. c. 20. See Shaw v. Pritchard, 10 Barn. & Cress. 241, E. C. L. R. vol. 21 ; Long V. Storie, 3 De Gex & Smale, 308. (/) Monys v. Leake, 8 T. Rep. 411 ; Sloane v. Packman, 11 Mee. & Wels. 770. (g) Stat. 7 Geo. II, c. 8, s. 8. See/)o««, the chapter on Stock. ^ This subject does not seem to have been enacted by the 6th sec. of an act of the leg- considered of sufficient importance in several i.slature of May 22, 1841, that, " If any per- of the United States, to require .statutory reg- son or per.?ons whatsoever, shall make or en- ulation. In Pennsylvania, however, it was ter into any contract or agreement, written 166 OF CHOSES IN ACTION. purpose of settling losses which had arisen from such illegal contracts could not be recovered back.(/i) But this act is now repealed.(«) Securities for money won at play or any game, or by betting on any game, or for money lent for gaming or betting at the time and place of such play, were declared by a statute of Anne to be utterly void ;(/.:)* but by a later 8tatute(^) (h) Cannan v. Bryce, 3 Barn. & Aid. 179, E. C. L. R. vol. 5. (t) Stat. 23 Vict. c. 28. (k) Stat. 9 Anne, c. 14. (/) 5 & 6 Will. IV, c. 41 ; Hawker v. Hallewell, 3 Sma. & Gifi". 194. or oral, for the purchase, receipt, sale, deliv- ery, or transfer, of any public loan or stock, or the stock of any corporation, institution, or company, or other security in the nature thereof, or of any share or interest in any such loan or stock, or in the stock of any such corporation, institution, or company, or other security in the nature thereof, or any bill, notes, or other obligations, of any corpo- ration, institution, or company, created oi authorized, or that may be hereafter created or authorized as aforesaid, in which contract or agreement, it may be stipulated or under- stood between the parties thereunto, his, her, or their agent or agents, that the same may be executed or performed at any future period, exceeding five judicial days next ensuing the date of such contract or agreement ; then, and in every such case, such contract or agreement shall be, and the same is hereby declared to be null and void," Ac. ; Purd. Dig. (1861), p. 127. But this section has been repealed by the act of the 17th of April, 1862, Purd. Dig. Suppl. (1864), p. 1266. And in New York, it was formerly the law that "all contracts, written or verbal, for the sale or transfer of any certificate, or other evidence of debt due, by or from the United States, or any separate State, or of any share or interest in the stock of any bank, or of any company incorporated under any law of the United States, or of any individual State, shall be absolutely void, unless the party contracting to sell or transfer the same, shall, at the time of making such contract, be in actual possession of the certificate or other evidence of such debt, share or interest, or be otherwise entitled in his own right, or be duly authorized by some person so entitled, to sell or transfer the said certificate or other evi- dence of debt, share or interest, so contracted for;" Revis. Stats, of N. Y., vol. i, p. 892. But this law has also been repealed, Revis. Stats, of N. Y. (18.59), vol. ii, p. 980 1 Statutes against gaming exist in al- most all the States in the Union ; and, even in those States where all betting and gaming has not been prohibited by statute, the judi- ciary have decided that, where it is of an im- moral tendency, or detrimental to public pol- icy, it is unlawful ; Bevil, &c., v. Hix, 12 B. Mon. R. 142; Hickerson v. Benson et al., 8 Mo. R. 8 ; Sisk v. Evans, Id. 52 ; Dewes v. Miller, 5 Barring. R. 347 ; Trenton Ins. Co. v. Johnson, 4 Zabr. R. 576 ; Porter v. Sawyer, 1 Barring. R. 517 ; in this last case, the chief justice remarks, " As a general proposition, it is lawful to bet. Contracts of this kind may be entered into, and the obligations arising from such contracts must be enforced by courts and juries, if they be not such as to affect the good of society, corrupt public morals, or infringe upon the private rights or feelings of third persons." Thus, a bet on the age of a lady, or the sex of a person, or the issue of a general election, whilst pending, "would, undoubtedly, be illegal, as being against public policy, and hurtful to society." For _a further consideration of the statutes against gaming, and the construction placed upon them by the courts of the several States, see the following cases : Finn et al. v. Bar- clay et al , 15 Ala. R. 627 ; Manning v. Manning, 8 Id. 138; Givens v. Rogers, 11 Id- 543 ; Stone v. Mitchell, 2 Eng. R. 91 ; Abrams et al. V. Camp, 3 Scam. R. 290 ; Parsons v. The State, 2 Port. (Ind.) R. 499 ; Danforth V. Evans, 16 Vt. R. 538 ; Mureau v. Langley et al., 21 Maine R. 26 ; Bevil, &o., v. Hix, 12 B. Mon. R. 142; McKinney v. Pope's Admr. OF CONTRACTS. 167 such securities are not to be utterly void, but are to be taken to have been given for an illegal consideration ; they are consequently now void only as between the parties, but valid in the hands of any innocent holder, to whom they may have been transferred without notice of the illegality of the transaction in which they originated. (w) And by a more recent statute(n) it is enacted, that all contracts or agreements, whether by parol or in writing, by way of gaming or wagering, shall be null and void; and that no suit shall be brought or maintained in any court of law or equity for recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made. But this enactment is not to apply to any subscription or contribution, or agreement to subscribe or con- tribute, for or towards any plate, prize or sum of money to be awarded to the winner or winners of any lawful game, sport, pastime, or exercise. Contracts for the payment of money, whereby there should be reserved more than five per cent, interest, were in like manner declared void by a statute of Anne, called the Usury *Law;(o) but in order to protect innocent rH=oQ-| holders of securities given for usurious consideration, it was subsequently declared that such contracts should not be absolutely void, but should be considered to have been made for an illegal consideration. (p) However, by a statute of the reign of King William the Fourth,(5') it was provided that no bill of exchange or promissory note made payable at or within three months after the date thereof, or not having more than three mouths to run, should be void by reason of any interest taken thereon or secured thereby, or any agreement to pay or receive (m) See ante, p. 82. (p) Stat. 5 & 6 Will. IV, c. 41. (n) Stat. 8 & 9 Vict. c. 109, s. 18. (q) Stat. 3 & 4 Will. IV, c. 98, s. 7. (o) Stat. 12 Anne, st. 2, ch. 16. 3 Id. 93 ; Lytle v. Lindsay, Id. 125 ; Ellis v. et al., 9 Ired. L. R. 378 ; Bledsoe v. Thomp- Beale, 18 Maine R. 337 ; Doyle v. The Com- son, 6 Richard. R. 44 ; Rioe v. Gist, 1 Strobh. missioners of Baltimore County, 12 Gill A. L R. 82 ; Russell v. Pyland, 2 Hump. R. 131 ; Johns. R. 484 ; Amory v. Gilman, 2 Mass. R. Swa^gerty v. Stokely, 1 Swan's R. 38 ; Tarle- 1 ; White v. Buss, 3 Cush. R. 448 ; Williams ton v. Baker, 18 Vt. R. 9; Watson v. Fletcher. V. Woodman, 8 Pick. R. 78; Terrall v. Ad- 7 Gratt. R. 19 ; Machir v. Moore, 2 Id. 257 ; ams, 23 Miss. R. 570 ; Ru.sh v. Gott, 9 Cow. Commonwealth v. Robbins, 26 Pa. St. R. 165; R. 173 ; Brown v. Riker, 4 Johns. R. 438 ; Collins v. Merrell, 2 Mete. (Ky.) R. 163. Collins V. Ragrew, 15 Id, 5 ; Slate v. Black 168 OF CHOSES IN ACTION. or allow interest in discounting, negotiating, or transferring the same. And by a subsequent 8tatutc,{?') all bills of exchange and promissory notes made payable at or within twelve months after the date thereof, or not having more than twelve months to run, and all contracts for the loan or forbearance of money above the sum of 10^. sterling, w^ere exempted from the operation of the Usury Law.^ Nothing, however, contained in the last-mentioned act was to extend to the loan or forbearance of any money upon security of any lands, tenements, or hereditaments, or any estate or interest therein. And now, by an act passed on the 10th of August, 1854, (s) all the laws against usury are repealed. But where interest is now payable upon any contract, express or implied, for payment of the legal or current rate of interest, or where interest is payable by any rule of law, the same rate is recoverable as before the act.(^) The above enactments are perhaps the most important statutory provisions by which contracts may be vitiated. Contracts whose (r) 2 & 3 Vict. e. 37. (0 Sect. 3. {s) Stat. 17 & 18 Vict. c. 90. 1 The rate of interest established by law, in annum, by a like arrangement ; and in Min- the several States, is as follows : in Maine, New nesota, any rate of interest specified in writing Hampshire, Vermont, Massachusetts, Rhode is legal. A distinction, also, is to be noticed, Island, Connecticut, New Jersey, Pennsylva- between an agreement to take usurious inter- nia, Delaware, Maryland, Virginia, North est, and the actual taking thereof; in some Carolina, Tennessee, Kentucky, Ohio, Indi- States, while the former is void only for the ana, Illinois, Missouri, Arkansas, Iowa, and usurious interest agreed upon, and the agree- Mississippi, six per cent, per annum ; in New ment good for the principal and legal interest, York, South Carolina, Michigan, Wisconsin, the latter (the actual taking of the usurious Georgia, and Minnesota, seven per cent. ; in interest) forfeits the whole sum, principal and Alabama, Florida, and Texas, eight percent. ; interest, upon which the usurious interest has and in Louisiana five per cent, per annum. It been paid. In every case, therefore, in which does not, however, necessarily follow, that a question of usury is raised, it will depend every contract by which a greater rate of upon a sound construction of the statutes of interest is reserved, than what is allowed usury of the State where the contract was by law, is usurious, for in some States, rriore made, whether the contract shall be subjected than the amount of interest specified in the to the penalties or forfeitures therein provided, statute may be taken, by a liu7ia fide, agree- These penalties or forfeitures are different in ment between the parties ; as in Mississippi, different States. Louisiana, and Missouri, eight per cent per For further on the subject of usury, see 4 annum may be reserved and taken, if it Am. L. Reg. (N. S.) 323, note, and be agreed upon between the parties ; in Ar- 84, note 1 ; also, History of Usury, kansas, Indiana, and Michigan, ten per cent.; C. Murray, in Wisconsin and Texas, twelve per cent, per id a7ite, p. \ f, by J. B. J- OF DEBTS. 169 objects are lawful are endlessly diversified, and many of them are regulated by laws which it *is not within the scope of the p-^Q^.-. present work to enumerate. For the breach of any such '- -' contract pecuniary damages are, as we have seen,(M) the sovereign remedy prescribed by law; though equity not unfrequently administers more appropriate specifics. The person to whom money has become due, whether from any injury received, or from any contract broken, or from a contract to pay money itself, stands in a situation more or less. advantageous as regards his remedies for recovering the money, according to the nature of the debt which has thus become due to him. For by the law of England all creditors are not allowed equal rights, but are pre- ferred the one to the other, partly according to accidental cir- cumstances, and partly according to the degree of diligence and precaution which each may have used. The subject of debt is of sufficient importance to form a separate chapter. *CHAPTER III. [*91] OF DEBTS. Debts, by the law of England, are divided into different classes, conferring on the creditor different degrees of security for re- payment. The class which confers the highest privileges is that of debts of record, which class will accordingly first claim our attention. A debt of record is a debt due by the evidence of a court of record.(a) Every court, by having power given to it to fine and imprison, is thereby made a court of record. (6) Such courts are either supreme, superior, or inferior. The supreme court is the Parliament. The superior courts of record are the House of Lords, the Court of Chancery, and the Courts of Queen's Bench, Common Pleas, and Exchequer, which are the more principal (w) A7ite, p. 60. (A) Bac. Abr. tit. Courts (D), 2. («) 2 Black. Com. 465. 170 OF CHOSES IN ACTION". courts. The courts of the Counties Palatine of Lancaster and Durham are also superior courts of record. (c) Tlie Court of Bankruptcy and its district courts, and every commissioner thereof, also exercise and enjoy all the powers and privileges of a court of record as fully as the courts of law at Westminster.((:Z) The Court of Probate is also a court of record ;[e) and so is the High Court of Admiralty.(/) The inferior courts of record may be said, gener- ally, to consist of the numerous courts established throughout the r*Q9i country, *under the recent acts for the more easy recovery •- ""-^ of small debts and demands in England.(^) Debts of record do not, however, confer the same advantages on all creditors equally, for there is one creditor whose claims are paramount to all others, namely, the crown, provided the debt be a debt of record, or a debt by specialty, that is, secured by deed.(A) And if the debt be by simple contract without such security, it will have preference over the other simple contract creditors of the debtor, and, as some say, even over other creditors by specialty. (z)* The lien of the crown on the lands of its debtors by record or spe- cialty, and also on the lands of accountants to the crown, is men- tioned in the author's Treatise on the Principles of the Law of Real Property.(j) Of all debts which one subject may owe to another, that which confers the most important remedy is a judgment debt, or a debt which is due by the judgment of a court of record. As such a debt is due by the evidence of a court of record, it is of course a debt of record. Such a debt may however now be incurred, without any actual exercise of judgment on the part of the court. For, (c) Ibid. (D), 1. (e) Stat. 20 & 21 Vict. c. 77, s. 23. («/) Stat. 12 & 13 Vict. c. 106, s. 6. (/) Stat. 24 Vict, c, 10, s. 14. {g) Stats. 9 & 10 Viet. c. 95, s. 3 ; 12 & 13 Viet. c. 101 ; 13 & 14 Vict. c. 61 ; 15 & 16 Vict. c. 54 ; 17. & 18 Vict. c. 16 ; 19 & 20 Vict. c. 108 ; 21 & 22 Vict. e. 74. (A) 'Williams on Executors, pt. 3, bk. 2, ch. 2, s. 1. (0 Bac. Abr., tit. Executors (L), 2. (j) Page 62, 1st ed. ; 65, 2d ed. ; 70, 3d & 4th eds. ; 76, 5th ed. ; 81, 6th ed. 1 The common-law prerogative of the king, Indiana, and Connecticut ; it does not subsist to be paid in preference to all other creditors, in South Carolina. 1 Kt. Com., pp. 243 to 248, is not univer.sally adopted in this country, and notes. For the law of Pennsylvania on It prevails in the government of the United this subject, see Purd. Dig. (1861), p. 284; States, and in Maryland, North Carolina, Ramsey's Ap., 4 Wat. R. 73. OF DEBTS. 171 strange as it may appear, a judgment against a defendant in au adverse suit, thougli the most obvious, is yet not the most usual method of incurring a judgment debt. Such a debt may be in- curred by the voluntary default of the defendant in making no reply to the action, which is called nihil elicit, or by his failing to instruct his attorney, whose statement of that *circum8tance [-.^.qo-i is called non sum informatus, or by a cognovit actionem, or ^ more shortly cognovit, b}' which the defendant confesses the action, and suiters judgment to be at once entered up against him.(A-) Of late years also it has become very usual for the parties to a suit to obtain, by consent, a judge's order, authorizing the plaintiff to enter up judgment against the defendant, or to issue execution against him, either at once and unconditionally, or more usually at a future time, conditionally on the non-payment of whatever amount may be agreed on. A judgment obtained on a judge's order for im- mediate judgment and execution is, however, the same thing as a judgment by nihil dicit, or confession. (?) The most frequent method of incurring a judgment debt is not, however, attended with the actual commencement of any adverse action. A warrant of attorney is given by the intended debtor, which consists of an authority from him to certain attorneys to appear for him in court, and to receive a declaration in an action of debt for the amount of the intended judgment debt, at the suit of the intended creditor, and thereupon to confess the action, or suffer judgment to goby default, and to permit judgment to be forthwith entered up against the intended debtor for the amount, besides costs of suit.^ Such a (k) 3 Black. Com. 397 ; Stephen on Pleading, 120. (/) Bell V. Bidgood, 8 C. B. 763, E. C. L. R. vol. 65 ; Andrews v. Diggs, 4 Ex. Kep. 827. ' In New York, judgments on warrants of 461 ; and sometimes, the court will refuse to attorney, may be entered within a year and allow a judgment to be entered on a bond and a day of the date of the warrant, as a matter warrant, less than twenty years old, upon the of course; after that time, and within ten presumption of payment; Exrs. of Clark v. year.?, an order of the court, or of a judge at Hopkins, 7 Johns. R. 556 ; upon a similar chambers, must be obtained ; between ten and principle, a rule of the Supreme Court of twenty years after date, judgment can only Pennsylvania provides, that, "If a warrant be entered by order of court ; and after twen- to enter judgment be above ten years old, ty years, the order will not be made, unless a and less than twenty, application must be rule to show cause is first had, and notice made to a judge for leave to enter judgment, given to the opposite party, if within the reach founded on an aflBdavit of the due execution of service; Manufacturers and Mechanics' of the warrant, and that the money is unpaid, Bank of the Northern Liberties in the County and that the defendant living. If the war- of Philadelphia v. Cowden et al., 3 Hill's R. rant of attorney be above twenty years old, 172 OF CHOSES IN ACTION. warrant of attorney is generally executed as a security for a smaller sum of money, usually one-half of the amount of the judgment a rule to show cause must be obtained, of which, notice must be given, if the defendant be within the State of Pennsylvania." There can be but one judgment entered on a warrant of attorney to confess judgment ; Campbell v. Kent, 3 Penn. R. 72; Ely v. Karmany, 23 Pa. St. R. 314 ; but the second judgment is not void, though clearly irregu- lar ; Neff et al. v. Burr, 14 Serg. & Raw. R. 166 ; Ulrich, with notice, &c., v. Voneida, 1 Penna. R. 245 ; Campbell v. Canon, Addis. R. 267 ; Adams v. Bush, 2 Wat. R. 289 ; Fairchild v. Camac, 3 Wash. C. C. R. 558 ; and, therefore, where two or more are jointly and severally bound, and judgment be en- tered against one on warrant, he cannot be joined with the others in a second judgment against all the defendants; Manufacturers and Mechanics' Bk. of the Northern Liber- ties in the Co. of Phila. v. Cowden et al., 3 Hill's R. 461 ,- Averill v. Loucks, 6 Barb. Sup. C. R. 19. By agreement between the parties, a judg- ment on warrant may cover future advances of money ; Chapin v. Clemitson, 1 Barb. Sup. C. R. 311 ; Averill v. Loucks, 6 Id. 19 ; Monell V. Smith et al., 5 Cow. R. 441 ; Bank of Auburn v. Throop, 18 Johns. R. 505 ; Roosevelt v. Mark et al., 6 Johns Ch. R. 279 ; BrinkerhofiF et al. v. Marvin et al., 5 Id. 324; Austin et al. v. Mclnlay, 16 Johns. R. 165 ; Holden et al. v. Bull, 1 Penna. R. 460 ; Parmenter v. ftillespie, 9 Pa. St. R. 87 ; Averill v. Loucks, 6 Barb. Sup. C. R. 19 ; Troup V. Wood, 4 Johns. Ch. R. 247 ; St. An- drews's Ch. V. Tompkins, 7 Id. 14 ; and such an agreement ought to be as precise as a bill of particulars, and must be strictly follow- ed ; Lawless v. Hackett, 16 Johns. R. 149; Chapin v. Clemitson, 1 Barb. Sup. C. R. 311 ; Nelson v. Sharp, 4 Hill's R. 584 ; Nich- ols V. Hewitt, 4 Johns. R. 433 ; and where the warrant of attorney for the confession of judgment, was to be exercised upon a certain condition or contingency, it must appear that it has been fulfilled ; Roundy v. Hunt, 24 111. R. 598 ; Harwood v. Hildreth, 4 Zabr. R. 51 ; Fuilerton's Ap. 46 Pa. St. R. 144. The court will not set aside a judgment en- tered on a warrant of attorney, merely on ac- count of irregularity ; Kingu Shaw, 3 Johns. R. 142 ; McFarland v. Irwin, 8 Id. 77 ; Han- er's Appeal, 5 Wat. & Serg. R. 473 ; Lewis v. Smith, 2 Serg. & Raw. R. 142 ; Humphreys y. Rawn, 8 Wat. R. 78; Roemer v. Denig, 18 Pa. St. R. 482 ; but if a warrant of attorney, made under, or by reason of, the provisions of a certain statute, does not strictly follow it, the judgment will be void, and so if the war- rant has been obtained for an unlawful pur- pose, or upon an unlawful consideration ; Ex parte Butler et al. v. Lewis, C. P. 10 Wend. R. 541 ; Judges v. The People, 15 Id. 110; Everitt v. Knapp, 6 Johns. R. 331 ; Richmond V. Roberts, 7 Id. 319 ; Bennett v. Davis etal., 6 Cow. R. 393; Bontel v. Owens, 2 Sandf. Supr. C. R. 655 ; The Manhattan Co.*. Brow- er, 1 Cai. R. 511 ; Evans v. Begley, 2 Wend. R. 243 ; Truscott et al. v. King, 6 Barb. Sup. C. R. 346 ; Humphreys v. Rawn, 8 Wat. R. 78 ; Hutchinson v. McClure, 20 Pa. St. R. 63 ; Davis v. Morris, 21 Barb. R. 152 : Barrett V. Thompson, 5 Ind. R. 457 ; Richards v. Mc- Millan, 6 Cai. R. 419 ; and a judgment en- tered without filing the warrant, or formal confession of defendant, will be set aside for irregularity ; Lytle v. Colts, 27 Pa. St. R. 193 ; Branning v. Taylor, 24 Id. 289. Where there is a dispute about facts, the court will direct a feigned issue to be formed ; Frazier, Jr., V. Frazier, 9 Johns. R. 80 ; Wintringham V. Wintringham, 20 Id. 296 ; Morey v. Shea- rer, 2 Cow. R. 465 ; Neff et al. v. Burr, 14 Serg. & Raw. R. 166 .- Kindig v. March, 16 Ind. R. 248 ; and parol evidence is admissi- ble to show that a judgment on a warrant, was entered after the death of the defendant ; 38 Pa. St. R. 486. In connection with the subject of warrants of attorney, the case of the Man, & Mec. Bk. of Philadelphia v. St. John, 5 Hill's R. 500, deserves notice on account of its singularity. In pronouncing the opinion of the court, Bronson, J., says, " The authority to confess a "judgment without process, must be clear and explicit, and must be strictly pursued. If the parties to this warrant of attorney intend to authorize a judgment in any other OF DEBTS. 173 debt ; and it is accordingly accompanied by a defeasance, which must be written on the same paper or parchment as the warrant of at- torney. (m) This defeasance, as its *name imports, defeats r-^Q^-, the full operation of the warrant of attorney, by declaring •- ^ that it is given only as a security for the smaller sum and interest, and that no execution shall issue on the judgment to be entered up in pursuance of the warrant of attorney, until default shall have been made in payment of such sum and interest at the time agreed on ; but that, in case of default, execution may be issued.(??,) The defeasance also until recently contained an agreement that it should not be necessary for the creditor to issue a writ of scire facias, or do any other act for reviving the judgment or keeping the same on foot, although no proceedings should have been taken (ot) Reg. Gen. Hil. 1853, s. 27; stat. 3 Geo. IV, c. 39, s. 4; 12 & 13 Vict. c. 106, s. 136. Collateral securities must be noticed; Morell v. Dubost, 3 Taunt. 235. If the attorney neglect to insert the defeasance, the security is not void between the parties, but only as against the assignees of the debtor, in case of his bankruptcy ; Shaw v. Evans, 14 East, 576; Morris t?. Methin, 6 Barn. & Cress. 446, E. C. L. R. vol. 13; Bennett v. Daniel, 10 Barn. & Cress. 500, E. C. L, R. vol. 21. {n) Warrants of attorney to confess judgment for securing any sum or sums of money are, with some exceptions, liable to the same duty (one-eighth per cent, on the money secured), as bonds for the like purpose; stat. 13 & 14 Vict. c. 97. See^osi. State than Pennsylvania, which is very ques- vania courts have an officer of that name, but tionable, I think that they did not intend we have not." The construction here given that a judgment should be entered in this to the instrument in question, is so utterly State. Both the bond and the warrant de- contrary to the known, and long received scribe two of the obligors as residents of the reading, of a form in common use in Pennsyl- State of Pennsylvania, the third as a resident vania, and to the plain meaning of the words of New Jersey. The warrant is addressed 'to used, that it is difficult to understand how John D. Smith, Esq., attorney of the Court such a decision could have been made, of Common Pleas of Philadelphia, in the See further on the subject of warrants of county of Philadelphia, in the State of Penn- attorney, and judgements thereon, the follow- sylvania, or to any other attorney of the said ing cases ; Montelius v. Montelius, 5 Pa. L. court, or of any other court, there, or else- Jour. 92 ; Helvete v. Rapp, 7 Serg. & Raw. where, or to any prothonotary of any of the R. 306 ; Commonwealth to the use, Ac, v. said courts.' The only thing which can Conrad etal., 1 Raw. R. 249 ; Rabe v. Hes- carry the power beyond the courts at ' Phila- lip et al., 4 Pa. St. R. 139; McCalmont, phia,' is the word ' elsewhere ;' and although, Admr. v. Peters, 13 Serg. & Raw. 196 ; Hays if the parties had stopped there, the authority v. The Commonwealth, 14 Pa. St. R. 39 ; might have extended to our courts, the scope Chambers v. Denie, 2 Pa. St. R. 422 ; Enew of the word ' elsewhere' is restricted by the v. Clark, Id. 234 ; Hall et al. v. Law, 2 Wat. words which immediately follow it, ' or to any & Serg. R. 135 ; Finney v. Ferguson, 3 Id. protkunotary of any of the said courts.^ Thi.s 413 ; Chambers v. Harger, 18 Pa. St. R. 16 ; shows that the parties were speaking of such James v. Jarrett, 5 Id. 370 ; Kirkbride et al. courts as had an officer called a ' prothono- v. Burden, 1 Dal. R. 288 ; Baker v. Lukens. tary,' and such courts only. The Pennsyl- 35 Pa. St. R. 146. 174 OF CIIOSES IN ACTION. thereupon for the space of one year. Without such a provision, no execution could be issued after the expiration of a twelvemonth from the date of the judgment, without the expense and trouble of a writ oi scire facias, calling on the debtor to inform the court, or show cause, why execution should not be issued.(o) But the Common Law Procedure Act, 1852, now provides that during the lives of the parties to a judgment, or those of them during whose lives execution may at present issue within a year and a day with- out a scire facias, and within six years from the recovery of the judgment, execution may issue without a revival of the judg- meut.( j:») A warrant of attorney is also sometimes given for enter- ing up judgment for a sum of money, in order to secure the regular payment of an annuity; in which case the defeasance, of course, expresses that no execution shall be issued until default shall have been made for so many days in some payment of the annuity, but that, in case of such default, execution may be issued from time to time.(^) ^^ -. *A warrant of attorney need not be under seal,(r) though ^ -"it generally is so. In order to guard against any im- position in procuring debtors to execute warrants of attorney or cognovits in ignorance of the efi'ect of such instruments, it is provided(5) that no warrant of attorney to confess judgment in any personal action, or cognovit actionem, given by any person, shall be of any force, unless there shall be present some attorney of one of the superior courts on behalf of such person, expressly named by him and attending at his request, to inform him of the nature and effect of such warrant or cognovit, before the same is executed ; which attorney shall subscribe his name as a witness to the due execution thereof, and thereby declare himself to be attorney for the person executing the same, and state that he subscribes as such attorney.^ And a warrant of attorney or (o) Stat. Westm. the second, 13 Edw. I, c. 45. {p) Stat. 15 &, 16 Vict. c. 76, s. 128. (^f) See Cuthbert v. Dobbin, 1 C. B. 278, E. C. L. R. vol. 50. (r) Kinnersley v. Mussen, 5 Taunt. 264, K C. L. R. vel. 1. is) Stat. 1 & 2 Vict. c. 110, a. 9. 1 This doctrine has been applied in the thus. Mason, J., in Butel v. Owens, 2 Sandf. State of New York, to the execution of a Supe. C. R. 655, says, "It has long been a warrant of attorney by a person in custody ; rule of the English courts, that no warrant OF DEBTS. 175 cognovit not executed in manner aforesaid, shall not be rendered valid by proof that the person executing the same did in fact understand the nature and effect thereof, or was fully informed of the same.(^) Every acknowledgment of satisfaction of a judg- ment is also required to be attested in a similar manner.(i<)^ Since the act for registering writs of execution, (x) warrants of attorney have become much less frequent than before. J^ot only was there a risk of debtors being imposed upon, in being prevailed on to execute warrants of attorney, but creditors, also, were formerly liable to be defrauded, by their debtors giving secret warrants of attorney, cognovits, or judge's orders, to some favored creditors, to the prejudice of the others. In order to *obviate this inconvenience, provision has been made by r-^Q^-, modern acts of Parliament for the filing, in the ofiice of ^ -^ the Court of Queen's Bench, of all warrants of attorney, with the defeasances thereto, and of all cognovits, and of all such judge's orders as before mentioned, or of copies thereof, within twenty- one days after their execution.(?/) And, in the event of the bankruptcy of the debtor after the expiration of this time, unless any such warrant of attorney, or cognovit, or judge's order, or a (0 Sect. 10 ; Potter v. Nicholson, 8 Mee. & Wels. 494 ; Everard v. Poppleton, 5 Q. B. 181, E. C. L. R. vol. 48 ; Pocock v. Pickering, 18 Q. B. 789, E. C. L. R. vol. 83. («) Reg. Gen. Hil. 1853, s. 80. (x) Stat. 23 & 24 Vict. c. 38. See Principles of the Law of Real Property, p. 79, 6th ed. (y) Stat. 3 Geo. IV, c. 39, ss. 1, 3 ; 12 & 13 Vict c. 106, s. 137. The twenty-one day.-^ are reckoned exclusively of the day of e.xecution ; Williams v. Burgess, 12 Ado). & Ell. 635, E. C. L. R. vol. 40. of attorney executed by any person in custo- somewhat singular, that this principle has dy of any sheriff or other officer, for the con- not with us, as in England, been extended to fession pf any judgment, shall be valid or of cases of warrants of attorney other than those any force, unless there be present some attor- executed by prisoners ; such a rule, applied ney on behalf of such person in custody, to be to the execution of all warrants of attorney, natoed by him, and attending at his request, could be productive of no injury, but would, to inform him of the nature and effect of such on the contrary, tend to prevent fraud or im- warrant of attorney, before the game is exe- position. cuted ; and the attorney is required to sub- ' By a rule of the District Court for the scribe his name to the due execution there- City and County of Philadelphia, no satisfac- of This rule was never adopted tion of a judgment shall be entered of record, in terras by the Supreme Court of this State, unless attested by the prothonotary, or by one but the practice of the court appears to have of his clerks, with the date of the entry, always been in accordance with it." It is ' 176 OF CHOSES IN ACTION. copy thereof, shall have been filed within the time above limited, the same is now void as against the assignees of the bankrupt,(2:) although judgment may have been signed within the time. (a) And a list of such warrants of attorney, cognovits, and judge's orders,((?^) and also an index containing the names, additions, and descriptions of the persons giving the 8ame,(c) is directed to be kept by the oflicer of the Queen's Bench, open to public inspec- tion and search on payment of a small fee. It is also provided that every warrant of attorney to confess judgment in any personal action given by any bankrupt, within two months of the filing of a petition for adjudication of bankruptcy by or against such bankrupt, and being for or in respect of (wholly or in part) an antecedent debt or money demand, and every cognovit actionem or consent to a judge's order for judgment given by any bankrupt, within two months of the filing of any such petition in any action commenced by collusion with the bankrupt, and not adversely, or purporting to be given in an action, but having in fact been given before the commencement of any action against Y^nfj-i the bankrupt, such *bankrupt bemg unable to meet his '- -' engagements at the time of giving such warrant of attor- ney, cognovit actionem, or consent (as the case may be), shall be void, whether the same shall have been given by such bankrupt in contemplation of bankruptcy or not.((^) In addition to these precautions, other provisions have been made to prevent an undue preference being given to one creditor over the others by means of a warrant of attorney, cognovit, or judge's order, in the event of the debtor becoming banki-upt.* When once the judgment of a court of record was allowed to be diverted from its proper end of expressing and enforcing the opinion of the court, to serve the purpose of a mere security for money due, it was found necessary to guard its use by provisions of the legislature, which have added much to the intricacy of the law. The eftect of these provisions appears to be, that if a judg- (z) Stat. 13 & 13 Vict. c. 106, ss. 136, 137 ; Bryan v. Child, 5 Ex. Rep. 368. (a) Acraman v. Herniman, Q. B. 15 Jur. 1008 ; 16 Q. B. 998, E. C. L. R. vol. 71 ; Far- row V. Mayes, 2 B. 17 Jur. 132 ; 18. Q. B. 516, E. C. L. R. vol. 83. (b) Stat. 3 Geo. IV, c. 39, s. 5 ; 12 & 13 Vict, c 106, s. 137. (c) Stat. 6 & 7 Vict. c. 66. .{d) Stat. 12 & 13 Vict. c. 106, s. 135. OF DEBTS. 177 ment be entered up against a person by reason of any warrant of attorney, cognovit, or judge's order, no execution taken out on such judgment against his goods can avail the judgment creditor, if such execution be not completed, by sale of the goods, before the creditor has notice of a prior act of bankruptcy committed by the debtor, and before a petition for adjudication of bankruptcy issues against such debtor, (e) If the execution be not so pre- viously completed by sale of thg goods, the judgment creditor has no other remedy than to come in for his dividend ratably with the other creditors. But a judgment obtained by default or nihil dicit in an adverse suit was not formerly within this rule; nor, was a judgment obtained on a cognovit, if the action were commenced *adversely and not by collusion. (/) p^^qr^-i In the case of judgment so obtained, therefore, seizure of ^ the debtor's goods under an execution, if made before the creditor had notice of his having committed an act of bankruptcy, and before the issuing of the fiat in bankruptcy, was valid as against the other creditors, although the execution might not have been completed by sale of the goods.(^) But under the Bankrupt Law Consolidation Act, 1849, sale as well as seizure is necessary in every case.(A) And the Bankruptcy Act, 1861, goes still further, and provides(f) that, if any execution shall be levied by seizure and sale of any of the goods and chattels of any trader debtor, upon any judgment recovered in any action personalfor the recovery of any debt or money demand exceeding fifty pounds, every such debtor shall be deemed to have committed an act of bankruptcy from the date of the seizure of such goods and chattels ; provided always, that, unless in the meantime a petition for adjudication of bankruptcy against the debtor be presented, the sherift' or other oflicer making the levy shall proceed with the execution, and shall at the end of seven days after the sale pay over the proceeds, or so much as ought to be paid, to the execu- tion creditor, who shall be entitled thereto notwithstanding such (e) Stat. 12 & 13 Vict. c. 106, ss. 133, 184, repealing stat. 6 Geo. IV, c. 16, s. 108. Ed- wards V. Scarsbrook, 3 Best & Smith, 280, E. C. L. R. vol. 113. (/) Stat. 1 Will. IV, c. 7, s. 7 ; see Crossfield v. Stanley, 4 Barn. & Adol. 87, B. C. L. R. vol. 24 ; S. C. 1 Nev. & Man. 668 ; Bell v. Bidgood, 8 C. B. 763, E. C. L. R. vol. 65. (g) See stat. 2 & 3 Vict. c. 29. (A) Stat. 12 & 13 Vict. c. 106, s. 184; Button v. Cowper, 6 Ex. Rep. 159. (t) Stat. 24 & 25 Vict. c. 134, s. 73. 12 178 OF CHOSES IN ACTION. act of bankruptcy, unless the debtor be adjudged a bankrupt within fourteen days from the day of the sale, in which case the money so received by the creditor shall be paid by him to the assig-nee under the bankruptcy; but the sheriff or other officer shall not incur any liability by reason of anything done by him as aforesaid ; provided also, that, in case of bankruptcy, the ^ „^^ costs and expenses of such action and execution *sh^ll be r 991 '- -" retained and paid out of ihe proceeds of the sale, and the balance only, after such payment, be paid to the assignees. Every judgment debt carries interest at the rate of 4^. per cent, per annum from the time of entering up the judgment until the same shall be satisfied, and such interest may be levied under a writ of execution on such judgment. (jy On the death of the (j) Stat. 1 & 2 Vict. c. 110, s. 17. 1 Neither debts due by contract, or by Crabb v. The Nashville Bank, 6 Yerg. R. judgment, would bear interest, unless it were 3.32 ; Grubb v. Brooke, 47 Pa. St. R. 485 ; so provided by positive legislation ; Hamer Townsend v. Smith, 20 Texas R. 465. In et al. V. Kirkwood et al., 26 Missi R. 95 ; North Carolina it has been decided, that in- Barnes v. Crandell, 12 La. An. R. 112; terest is not to be calculated upon a judg- Thompson v. Monrow, 2 Cal. R. 99 ; but it ment, but on the principal of the debt, until is believed, that in all of the States except the time of payment ; Satterwhite r. Carson, North Carolina, interest has been made an 3 Ired. L R. 549 ; and, where judgment is incident to judgments ; The Commonwealth, entered for the penalty of a bond, interest for the use, Ac, V. Vanderslice etal., Admrs., can only be calculated upon the amount 8 Serg. & Raw. R. 452 ; Ijams et al. v. Rice, found due ; Nice et al. v. Turrentine, 13 use, &c., 17 Ala. R. 404; Thompson v. Ired. L. R. 212; in which last doctrine, Thompson, 5 Ark. R. 18 ; Mayor, )-o ;•«?(/ / 7. Real estate devised ; whe- ther in terms general or specific. But see Hallowell's Est., 23 Pa. St. R. 229 : and Loo- mis's Ap., 10 Id. 387. In New York, by Liv- ingston V. Newkirk, 3 Johns. Ch. R. 312, the order of application was established, as, 1. The general personal estate ; 2. Estates de- vised expressly for the payment of debts, aiirl for that purpose only ; 3. Estates descend- ed. 4. Estates specifically devised, though charged generally with the payment of debts. Which last has also been decided to be the or- der of application in Kentucky, by McCamp. bell V. McCampbell, 6 Litt. R. 95, viz. : 1. The general personal estate ; 2. The estate es- pecially and expressly devised to be sold ; 3. The estate descended ; 4. The estate specifi- cally devised, though charged generally with the payment of debts. In Massachusetts, by the case of Hays v. Jackson, 6 Mass. R. 149, the order was settled, as follows • ]. The per- sonal estate, excepting specific bequests, or such of it as is exempted from the payment of debts ; 2. The real estate, appropriated in the will as a fund for the payment of debts ; 3. The descended estate, whether the testator was seized of it when the will was made, or it was afterwards acquired ; 4. The rents and profits of it, received by the heir after the tes- tator's death ; 5. The lands specifically de- vised, although generally charged with debts, yet not specially appropriated for that pur- pose. And see, Stuart v. Exr. of Carson, 1 Desaus. R. 500 ; Hall et ux. v. Sayre, 10 B. Mon. R. 46 ; Wiliamsi;. Price, 21 Geo. R. 507. As to the judgments of foreign states, and that they are not entitled to the priority due judgments obtained against the decedent, in the state where he resided, but, on the con- trary, rank with simple contract debts, see, Brengle v. McClellun, 7 Gill & Johns. R. 434 ; Hubbell V. Coudry, 5 Johns. R. 132 ; Came- ron V. Wurtz, 4 McC. R. 278 ; Gainey v. Sex- ton, 29 Mo. R. 449 j Brown v. Public Admr., 2 Bradf. R. 103. OF DEBTS. 181 order to affect lands in the hands of purchasers or mortgagees.(?)' The decree of a court of equity is equivalent to the judgment of a court of law.(m) And the privilege of priority of payment extends to the judgments of every court of record, wh'ether superior or inferior; hut the judgment of a foreign court is en- titled to no precedence over a simple contract debt.(w) The remedies of the creditor by judgment of any of the superior courts, against the real estate of his debtor, are mentioned in the author's treatise on the Principles of the Law of Eeal Property.(o) The remedies against the choses in possession of the debtor have been referred to in a previous part of the present work.(^) The remedies in respect of the choses in *action of the debtor |-^-|^/^^ will be hereafter mentioned. In addition to these rem- edies, such a judgment creditor may imprison the person oi his debtor by means of the writ of capias ad satisfaciendum ;[q) but, should he do so, he will relinquish all right and title to the benefit of any charge or security which he may have obtained by virtue of his judgment. (r) If, however, the debt should not exceed 20?., the debtor cannot be imprisoned(5) without a previous summons and examination before a commissioner of bankrupt or a judge of a court for the recovery of small debts, who will order the commitment of the debtor only in case of fraud or other ill behavior ;(^) and the imprisonment will not then operate as any satisfaction of the debt.(;<)^ (/) Stat. 23 & 24 Vict. c. 38, ss. 3, 4. See Re Rigby, M. R. 12 W. R. 32 ; Principles of the Law of Real Property, p. 75, et seq., 6th ed. {m) Shafto v. Powe, 3 Lev. 355. {n) Duplex v. De Proven, 2 Vern. 540. See, also, Smith v. Nicolls, 5 Bing. N. C. 208, E. C. L. R. vol. 35. (o) P. 63, et seq., 2d ed. ; 66, 3d & 4th eds. ; 71, 5th ed. ; 75, 6th ed. (p) Ante, p. 48. (<7) Bac. Abr. tit. Execution (C), 3. (r) Bac. Abr. tit. Execution (D) ; stat. 1 & 2 Vict. c. 110, s. 16. (s) Stat.^7 & 8 Vict. c. 96, s. 57. (t) Stat. 8 & 9 Vict. c. 127 ; 9 & 10 Vict. c. 95, s. 99. (M) Stat. 8 A 9 Vict. c. 127, s..3 ; 9 & 10 Vict. c. 95, 8. 103. 1 The lien docket is not the record of judg- tice to a subsequent incumbrance, which shall ments, but the essential index of them; it be actual; Smith's Ap., 47 Id. 140; other- does not make a judgment, but refers to one wise, it will not be effectual as a judgment, as supposed to be already made ; Ferguson v. against subsequent lien creditors, whose liens Staver, 40 Pa. St. R. 216; but the law re- are regularly docketed ; Snyder County Ap., quires judgments to be properly docketed and 3 Grant's Cos. 40. indexed, or in default of this, which amounts ^ In many of the States of the Union, im- only to constructive notice, to bring home no- prisonment for debt has been abolished by 182 OF CUOSES IN ACTION. Judgments of the inferior courts may be removed into the superior courts by order of any judge of the latter courts; and immediately on such removal the judgment has the same force, charge and eifect as a judgment of the superior court;' but it cannot aft'ect any lands, tenements, or hereditaments, as to pur- chasers, mortgagees, or creditors, unless registered in the same manner as judgments of the superior courts.(v) A registry is now provided for judgments in the county courts for the sum of 10/. and upwards, (.t) In addition to judgment debts, other debts of record are recog- nizances when duly enrolled,(^) and statutes merchant, statutes staple, and recognizances in the nature *of statutes staple. '- -' The three last are now quite obsolete. A recognizance is an obligation entered into before some court of record or magis- trate duly authorized, with condition to do some particular act, as to appear at the assizes, to keep the peace, or to pay a debt,(2) It is payable out of the personal estate of the debtor, in the event of his decease, next after judgment debts.(a)'' [v) Stat. 14 2 Vict, e 110, s. 22; 18 & 19 Vict. c. 15, s. 7. See Principles of the Law of Real Property, 74, 5th ed. ; 78, 6th ed. {x) Stat. 15 & 16 Vict. c. 54, s. 18. (y) Glynn v. Thorpe, 1 Barn. & Aid. 153. (z) 2 Bla. Com. 341. [a) Williams on Executors, pt. iii, bk. 2, c. 2, s. 2. acts of legislation. Suits for fines and pen- Orphans' Court, the court held, that the alties are excepted from the efifect of these judgment was not a lien on the lands of the . statutes, nor do they embrace actions for intestate, and that it had no priority of pay- trespass or torts ; and, arrest is usually per- ment out of the proceeds of the sale, over mitted, where the debt has been fraudulently either " phj'sic, funeral expenses, servants' contracted, or where the debtors fraudulently wages," Ac. ; In the matter of the Estate of conceal, or dispose of, their effects. Wm. Patterson, dec'd, 1 Ash. R. 336. 1 See Dickinson v. Smith, 25 Barb, R. 102. ^ la New Jersey and Tennessee, a recogni- In Pennsylvania, although judgments ob- zance creates a lien on the lands of the re- tained before a justice of the peace, when cognizor, from the time of its acknowledg- filed in the Common Pleas, or made known to ment; State v. Stout, 6 Halst. K. 362 ; State the administrators, must be paid pro rata v. Winn, 3 Sneed's R. 393 ; but, generally, a with judgments in a court of record ; Scott, recognizance does not operate as a lien on Admr., v. Ramsay, 1 Bin. R. 221 ; yet, where the lands of the recognizors, until judgment a judgment was obtained before a justice of on the recognizance ; State v. Morgan, 2 Bai- the peace, against the defendant, and, after ley's R. 601 ; Dewiti;. Osborn, 5 Harr. R. 480 ; his death, a transcript of the judgment was People v. Lott, 21 Barb. R. 130 ; Gilmer v. filed in the oflBce of the Prothonotary of the Blackwell, Dudley's R. 6 ; Pinckard v. The Court of Common Pleas, and subsequently People, 1 Scam. R. 187 ; Graham v. State, 7 the real estate of the defendant was sold by Blackf. R. 313 ; Allen v. Reesor, 16 Serg. k his administrators, under an order of the Raw. R. 11. OF DEBTS. 183 Next in importance to debts of record are specialty debts, or debts secured by special contract contained in a deed.(b) These are of two kinds, debts by specialty in which the heirs of the debtors are bound, and debts by specialty in which the heirs are not bound. On the decease of the debtor, both these classes of specialty debts stand on a level so far as regards their payment out of the personal estate of the debtor. They rank next after debts of record, and take precedence of all debts by simple contract,(c) with the ex- ception of money owing for arrears of rent, to which the feudal principles of our law have given an importance equal to that of debts secured by deed.(c/) Debts by specialty in which the heirs are bound have, however, a precedence over those in which the heirs are not bound, in case the real estate of the debtor should be resorted to on his decease ;(e) unless he should have charged his real estates by his will with the payment of his debts, in which case all the creditors of every kind will be paid out of the produce of such real estates, without any preference. (/) For the sake of the advantage which may thus be gained on the decease of the debtor, his heirs are usually bound *in every specialty debt. The deed creating the debt may be either a deed of cove- *- -• nant or a bond. A covenant runs thus : "And the said (debtor) doth hereby for himself, his heirs, executors, and administrators, covenant with the said [creditor), his executors and administrators," to pay, &c. A bond is in the following form : "Know all men by these presents, that I (debtor), of [such a place), am held and firmly bound to [creditor), of [such a place), in the penal sum of lOOOL of lawful money of Great Britain, to be paid to the said [creditor), or to his certain attorney, executors, administrators, or assigns, for which payment to be well and truly made I bind myself, my heirs, executors, and administrators, and every of them, firmly by tbese presents. Sealed with my seal. Dated this 1st day of January, 1848." In both of the above cases it will be observed that the executors and administrators are bound as well as the heirs. This, (i) 2 Bla. Com. 4fi5. See ante, p. 68. (c) Pinchon's Case, 5 'Rep. 88 b. (d) Wentworth's Executors, 284, 14th edit. ; Claugh v. French, 2 Coll. 277. (e) See Principles of the Law of Real Property, BO, 2d ed. ; 63, 3d & 4th eds. ; 68, bth ed. ; 72, 6th ed. Richardson v. Jenkins, 1 Drew. 477, 483, if) 2 Jarm. Wills, 510, 496, 2d ed. 184 OF CHOSES IN ACTION. however, is not absolutely necessary, and the covenant or bond would be equally eitectual if the heirs only were named in it.(^) A bond in the form above mentioned, without any addition to it, is called a single bond. Bonds, however, have usually a condition annexed to them, that, on the person bound (called the obligor) doing some specified act (as paying money when the bond is to secure the payment of money), the bond shall be void. The con- dition of an ordinary money-bond is as follows : " The condition of the above-written bond or obligation is such, that if the above- bounden [debtor), his heirs, executors, or administrators, should pay unto the said {creditor), his executors, administrators, or assigns, the full sum of 500^. [usually half the amount named in the penalty) of lawful money of Great Britain, with interest for the same after the rate of 5L per cent, per annum, upon the day of now r*inQn ^^"^^ ensuing, without *any deduction or abatement what- *- -* soever, then the above-written bond or obligation shall be void, otherwise the same shall remain in full force." Bonds with conditions of this kind have been long in use. In former times, when the condition was forfeited the whole penalty was recover- able. (A) Equity subsequently interfered, and prevented the creditor from enforcing more than the amount of the damage which he had actually sustained. The courts of law at length began to follow the example of the courts of equity ; and according to a course of proceeding, of which there are many examples in the history of our law, the legislature more tardily adopted the rules which had already been acted on in the courts ; and by a statute of the reign of Queen Anne it was provided, that, in case of a bond with a condition to be void upon payment of a lesser sum, at a day or place certain, the payment of the lesser sum with the interest and costs shall be taken in full satisfaction of the bond, though such payment be not strictly in accordance with the condition. («) But if the arrears of interest should accumulate to such an amount as, together with the principal, to exceed the penalty of the bond, the creditor can claim no more than the penalty either at law(/:) or iu (g) Co. Litt. 209 a ; Barber v. Fox, 2 Wms. Saund. 136. (A) Litt. s. 340. (f) Stat. 4 & 5 Anne, c. 16, ss. 12, 13. See 3 Bur. 1373 ; 2 Bla. Com. 341 ; Smith v. Bond, 10 Bing. 125, E. C. L. R. vol. 25 ; S. C. 3 Moo. & Scott, 528 ; James v. Thomas, 5 Barn. & Adol. 40, E. C. L. R. vol. 27. (yt) Wild V. Clarkson, 6 T. R. 303. OF DEBTS. 185 equity. (?) If, however, there be special circumstances in the credi- tor's favor, as if he have a mortgage also for the principal and interest,(wi) or if the debtor has been delaying him by vexatious proceeding8,(?i) equity will then aid him to the full extent of his demand, (o) *Bonds are frequently givenfnot only for securing the p^-,/^.-■ payment of money on a given day, but also with conditions '- -' to be void on the performance of many other acts agreed to be done, or on the pa^Tiient of money by instalments. In such cases the law formerly was, that on the breach of any part of the condition, the whole penalty became due ; and judgment and execution might be had thereon, subject only to the control of a court of equity on application to it for relief But now in such cases the obligee (or person to whom the bond is made) must, in bringing his action, state or assign the breaches which have been made by the ob- ligor ;(p) and although judgment is still recovered for the whole penalty, execution of such judgment is allowed to issue only for the damages in respect of the breaches actually committed ; and (/) Clarke v. Seton, 6 Ves. 411 ; Hughes v. Wynne, 1 My. & Keen, 20. (»i) Clarke v. Lord Abingdon, 17 Ves. 106. (n) Grant v. Grant, 3 Sim. 4.30. (o) 6 Ves. 416. By the Stamp Act, 13 & 14 Vict. c. 97, bonds and covenants for the pay- ment of any definite and certain sum of money are, with some exceptions, charged with an ad Valorem duty of one-eighth per cent., or half a crown per hundred pounds on the money secured, according to the following table, contained in the act : « d Not exceeding £50 13 Exceeding £50 and not exceeding £100, 2 6 100 " 150, 3 9 " 150 " 200, 5 " 200 " 250 6 3 250 " 300 7 6 And where the same shall exceed £300, then for every £100, and also for any fractional part of £100, 2 61 It may be remarked, that for sums not exceeding £150, the duty is less than on a bill or note, whilst the security is greater. (p) See the judgment of Parke, B., in Grey v. Friar, 15 Q. B. 891, 910, E. C. L. R. vol. 69 ; Wheelhouse v. Ladbrooke, 3 H. AN. 291. ' By the " Internal Revenue Law," being ing one hundred dollar."?, and not exceeding the act of Congress of March 3, 1865, it is five hundred dollars, shnll be fifty cents, and provided, that the stamp duty on any personal fifty cents for every additional sum of five bond, given as security for the payment of hundred dollars, or fractional part thereof, any definite or certain sum of money exceed- 186 OF CHOSES IN ACTION. the judgment remains as a further security for the damages to be sustained by any future breach, (r/) The last and most numerous, though least important, class P^ *of debts in the eye of the law are debts by simple con- '- -" tract, which are all debts not secured by the evidence of a court of record, or by deed m specialty. On the decease of the debtor, these debts are payable out of his personal estate, by his executor or administrator, subsequently to all debts of record or by specialty, except voluntary bonds, which are payable after all simple contract debts, but before any of the legacies. (r)^ Debts secured by bills of exchange and promissory notes have no prefer- ence over the other simple contract debts of the deceased, (s) Thus it will be seen that there are now, according to the law of England, five principal kinds of debts, namely, crown debts, judgment debts, specialty debts in which the heirs are bound, specialty debts in which the heirs are not bound, and simple con- tract debts. Each of these classes has a law of its own, and remedies of varying degrees of efficacy. According to natural justice one would suppose that all creditors for valuable consider- ation should have an equal right to be paid ; or if any difference were allowed, that those who could least aftbrd to lose should be preferred to the others. Our law, however, takes precisely the opposite course, and, for reasons which certainly illustrate the history of England, gives to the crown, representing the public in the aggregate, who can best afford to lose, a decided preference over private creditors, whose loss may be their ruin.^ Again, a debt admitted without dispute gives the creditor far less advantage than a debt which has been contested and decreed to be paid by the judgment of a court of record.^ The proper function of a (g) Stat. 8 & 9 Will. Ill, c. 11, s. 8 ; Hardy v. Bern, 5 T. R. 636; Willoughby v. Swin- ton, 6 East, 550 ; 1 Wms. Saund. 57, n. (1) ; Hurst v. Jennings, 5 Bar. & Cress. 650, E. C. L. R. vol. 11 ; S. C. 8 Dow. & Ry. 424. (r) Lomas v. Wright, 2 My. & Keen, 769 ; Watson v. Parker, 6 Beav. 283. (s) Yeoman v. Bradshaw, 3 Salk. 164. 1 A voluntary bond, in law as well as at Eq. R. 57. And see Candor & Henderson's equity, is good between the parties, but in Ap., 27 Pa. St. R. 119; Archer v. Hart, 5 the course of administration, it must be post- Florida R. 234. poned to any just debts, though due by sim- ^ See ante, p. 92, note, pie contract ; Stephens v. Harris et al., 6 Ired. ' See post, p. 116, note. or DEBTS. 187 court of judicature would seem to be the settlement of disputes. In our law, however, *the iudo-ment of the court is per- ^ _ r 106T mitted to be made use of not only to settle contested ^ -• claims, but also as a better security for money admitted to be due. The reason of this perversion 'of the proper end of a judgment has been the superior advantages possessed by a creditor having a judgment in his favor. So long, however, as the court ex- ercises its legitimate function of deciding on contested claims, there seems to be no reason why a debt established by the decision of the court should have any preference over one which has never been disputed. If this w^ere the case, the use of judg- ments as mere securities, by collusion or agreement of the parties, would at once fall to the ground, and an end would be put to a very fruitful source of litigation and fraud. Practically there are but two reasons why payment of a debt is withheld, namely, either because the debtor, though able to pay, doubts his liability, or because he is unable to pay, thou^i he knows he is liable. In the first case an action at law decides the question; but the judg- ment given by the court in exercise of its proper function is scarcely ever followed by the taking out of execution. The debt being established, the debtor pays it, and the judgment is immedi- ately satisfied. The creditor has the advantage of the decision of the court, but he has no occasion for any of those extraordinary remedies to which his position as a judgment creditor entitles him. K, however, the debtor is unable to pay, judgment is obtained merely for the sake of its fruit. The creditor endeavors, by suing out an execution, to obtain an advantage over other credi- tors, who may not have put themselves and the debtor to the same trouble and expense. But inability to pay one debt is pre- sumptive evidence of inability to pay others; and when a man is unable to pay all his creditors in full, it is time that a distribution should be made of his property amongst his creditors ratably. The extraordinary privileges conferred on a judgment creditor seem, therefore, in most cases, practically to end in an undue *preference of a pressing creditor over others who have p^-,^,-, as good a right to be paid. With respect to the three last •- -' classes of debts, namely, debts by specialty in which the heirs are bound, those in which the heirs are not bound, and simple con- tract debts, the distinctions between them serve principally to 188 OF CHOSES IN ACTION. mark the steps of tlie struggle by whieli the rights of creditors have at length been obtained. The trophies of a victory so hardly won can scarcely be expected to present a very orderly appearance. The rights of these creditors accordingly vary with the accident of the death of the debtor, with the proportion which his real estate may bear to his personalty, and with the circumstance of his having or not having charged his real estate by his will with the payment of his debts; although, as we shall see, he can bring them all to a level by becoming a bankrupt if he please. Surely it is time that the law of debtor and creditor were placed upon some more simple and reasonable footing. Since these remarks were written, an approach has been made towards the practical application of the principles above insisted on, by the Bankruptcy Act, 1861, (^) which provides, as we have seen, that the seizure and sale of the goods of a trader debtor, on an execution for a sum exceeding fifty pounds, shall be an act of bankruptcy. The author ventures to express his gratification at this improvement in the law, and his hope that still further prog- ress may yet be made in the same direction. The next subject which claims our attention is that of interest upon debts. The absurd prejudice which anciently caused in- terest, under the name of usury, to be considered unlawful, retained some hold upon our law long after the *taldng of '- -^ interest was rendered lawful by act of Parliament.(?<) In ordinary cases a debtor was allowed to withhold payment of his debt, without being obliged to give to his creditor the poor recompense of interest on the money he was making use of for his own benefit. For until recently it was a general rule of law, that interest was not payable on any debts, whether by specialty or simple contract, unless expressly agreed on, or unless a promise could be implied from the usage of trade or other circumstances, or unless the debt were secured by a bill of exchange or promis- sory note, which, being mercantile securities, always carried in- tere8t.(y) But in equity interest was more frequently a\lowedi.{w) (0 Stat. 24 & 25 Vict. c. 134, s. 73, ante, p. 98. {71) Stat. 37 Hen. VIII, c. 9. See ajtte, p. 5. (v) Higgins v. Sargent, 2 Barn. & Cress. 348, E. C. L. R. vol. 9 ; S. C. 3 Dow. & Ry. 613 ; Foster v. Weston, 6 Ring. 709, E. C. L. R. vol. 19 ; Page v. Newman, 9 Barn. & Cress. 378, E. C. L. R. vol. 17. {w) See Lowndes v. Collins, 17 Ves. 27 ; 2 Fonb. Eq. 429 ; C. P. Cooper, 246, et seg. OF DEBTS. 189 And now, by an act of King William the Fourtli,(a;) interest is recoverable on all debts payable by virtue of any written instru- ment, at a certain time, from the time when such debts were payable, or if payable otherwise, then from the time when demand of payment shall have been made in writing, so as such demand give notice to the debtor that interest will be claimed from the date of such demand until the time of payment.' The payment of a debt is sometimes secured by a surely, who makes himself liable, together with the principal debtor, for the payment.^ If the surety should pay the debt, he will become the (x) Stat. 3 4 4 Will. IV, c. 42, ss. 28, 29 ; Hyde v. Price, 8 Sim. 678. ' See ante, p. 89, note 1 and p. 98, note 1. 2 Although, in the case of principal and surety, the liability of the latter is not of a primary character, yet the creditor is not bound to pursue the principal, before resort- ing to the surety ; Abercrombie v. Knox, 3 Ala. R. 728 ; but in Pennsylvania, a dis- tinction has been taken between surety and guarantee ; where the latter term is used, and the contract is of that nature, the cred- itor must enforce his remedies against the principal debtor, before he resorts to the guarantor ; or, he must show that the affairs of the principal debtor were in such condition, that any pursuit of him would have been ut- terly fruitless j Parker v. Culvertson, 1 Wall, Jr. R. 149 ; Margerger et al. v. Pott, 16 Pa. St. R. 9 ; Stroehecker v. The Farmer's Bank, 6 Pa. St. R. 44 ; Johnson v. Chapman, 3 Pa. R. 18 ; Rudy v. Wolfe et al., Admrs., 16 Serg. & Raw. R. 79 ; Koch v. Melhorn, 25 Pa. St. R. 89 ; Campbell v. Baker, 46 Pa. St. R. 245 ; Gilbert v. Henck, 32 Id. 205 ; and see also, Mackie's Exr. v. Davis, . Hill, 4 Wat. & Serg. R. 426 ; Knox v. Moatz, 15 Pa. St. R. 74 ; Erb's Ap., 2 Pa. R. 298 ; Cornwell's Ap., 7 Wat. & Serg. R. 398 ; Lathrop's Ap., 1 Pa. St. R. 512 ; Winebrenner's Ap., 7 Id. 333 ; Pott V. Nathans, 1 Wat. & Serg. R. 155; Rittenhouse v. Levering, 6 Id. 190 ; Yard v. Patton, 13 Pa. St. R. 287 ; Gossin v. Brown, OF DEBTS. 191 the bond under seal of the debtor and his surety, the surety, having paid the debt, would until recently have become *the simple contract creditor only of the principal debtor; [*109] 11 Pa. St. R. 531 ; Miller et al., Assignees, V. Ord, Exr., 2 Bin. R. 382 ; Pride v. Boyce, Admr., Rice's Eq. R. 275 ; Exrs. of Gadsden V. Exrs. of Lord, 1 Dessau. R. 214 ; Uzzel v. Mack, 4 Hump. R. 319 ; Bower's Est., 23 Pa. St. R. 294 ; Brewer v. Franklin Mills, 42 N. H. R. 292 ; and, it seems to be generally al- lowed in the American States, which have, in this respect, placed the doctrine of principal and surety on a wider and more liberal basis, than that prescribed by the law of Eng- land, that where the claim of the credi- tor is evidenced by bond, judgment, Ac, the claim is not extinguished by the payment of the debt by the surety, but that it is still subsisting for his benefit, and he will be en- titled to an assignment of the bond, judg- ment, or other evidence of the debt, or to deal with it as if it were actually assigned to him, and enjoy from it all the advantages which the original creditor could have ob- tained. In some of the States this right has been conferred upon the surety by equitable adjudication, and in others it is expressly given by statute ; Edgerly v. Emerson, 3 Fost.'R. 565 ; Grove v. Brien, 1 Md. R. 439 ; Carroll, Exr., v. Bowie, 7 Gill's R. 34; Goodyear v. Watson, 14 Barb. Supre. C. R. 481 ; McDowell v. The Bank of Wilmington and Brandywine, 1 Harring. R. 369 ; Daven- port V. Hardeman, 5 Geo. R. 680 ; Bailey -t'. Mizell, 4 Id. 123 ; Harris v. Wynne, Id. 521 ; Morris v. Evans et al., 2 B. Mon. R. 86 ; Morris v. Page, 9 Dana's R. 433 ; Norton v. Soule, 2 Maine R. 341 ; Creager v. Brengle, 5 Har. & Johns. R. 234; Merryman et al. v. The State, at the instance of Harris, Id. 423 ; Colegnte, Ac, v. The Fredericktown Savings Institution, . Martin et al., 4 Johns. Ch. R. 566 ; Averill v. Locks, 6 Barb. Sup. C. R. 20 ; Sloo v. Lea, 18 0. R. 279 ; Ferrall et al. v. Bradford, 2 Fla. R. 508 ; Smith et al. v. Black, 9 Serg. &, Raw. R. 142 ; Lewis v. Williams, 6 Whart. R. 264 ; Anderson v. Levan, 1 Wat. & Serg. R. 334 ; but, both the securities must be between the same parties; Day et al. v. Seal etal., 14 Johns. R. 404 ; Axers, E.xrx. v. Mussehnan, 2 Browne's R. 11 ; Beale v. The Bank, 5 AVat. R. 629 ; Wolf v. Wyeth, 11 Serg. & Raw. R. 149 ; Davis v. Anable et al., 2 Hill's (N. Y.) R. 339. And in all cases where the instrument is OF DEBTS. 205 the creditor than the whole amount of his demands, it is compe- tent to the debtor to make the payment in satisfaction of any de- mand he may please, and the creditor must appropriate the pay- ment accordingly ;(^) *but if the payment be made gener- ^^^ ^ ally, without any exjiress appropriation, the creditor may elect, at the time of payment, (m) or within a reasonable time after,(n) to appropriate the money to whichever demand he may please. And if no election as to the appropriation of the payment should be made on either side, the law will, in ordinary cases of current accounts, presume that the first item on the debit side is discharged or reduced by the first payment entered on the credit side, and so on in the order of time.(o)^ When the debt carries (/) Shaw V. Picton, 4 Barn. & Cress. 715, E. C. L. R. vol. 10; Nash v. Hodgson, Ld. C. & Lds. Justices, 1 Jur. N. S. 946 ; 6 De Gex, M. & G. 474. (?«) Devaynes v. Noble, 1 Mer. 604. (ii.) Simson v. Ingham, 2 Barn. & Cress. 65, E. C. L. R. vol. 9. (o) 1 Meriv. 608 j Williams v. Rawlinson, 10 J. B. Moore, 362 ; Merriman v. Ward, 1 John. & H. 371. between the same parties, and for the same Serg. R. 257 ; Musgrove v. Gibbs, 1 Dal. R. ^um as the former security, the general 216 ; Hacker et al. «. Perkins, 5 Whart. R. 95; course of business, as well as the presumption Porter v. Talcot et al., 1 Cow. R. 359 ; Bank of of fact, would seem to imply that the more the Commonwealth v. Letcher, 3 J. J. Marsh. recent security extinguishes the older; Slay- R. 195 ; Downey v. Hicks, 14 How. R. 240. maker v Gundaeker's Exrs., 10 Serg. & Raw. i The doctrine stated in the text, is the law R. 75 ; Bank of the United States v. Daniels, of this country ; for where a debtor, being 12 Pet. R. 14 ; Castleman v. Holmes, 4 J. J. liable to his creditor on more than one ac- Marsh. R. 1 ; Stewart's Appeal, 3 Wat. & count, makes a voluntary partial payment, Serg. R. 476 ; Frisbie v. Lamed, 21 Wend, he has a right to apply it to what debt he R. 450 ; Butler «. Miller, 1 Denio's R. 407; pleases; Speck v. The Commonwealth, 3 Gardner v. Hust, 2 Richard. R. 601. Thus, Wat. & Serg. R. 328 ; Berghaus v. Alter, 9 the giving of a new note for an old one, is Wat. R. 387 ; The Mayor and Commonalty equivalent to a payment of the latter ; Corn- of Alexandria v. Patten et al., 4 Cranch's R. wall V. Gould, 4 Pick. R. 444 ; Huse v. Alex 317 ; Field et al. v. Holland et al., 6 Id. 8 ; ander, 2 Metcf. R. 157 ; and so of a bond ; Bosley v. Porter, 4 J. J. Marsh. R. 621 ; Hall Morrison v Berkey, 7 Serg. & Raw. R. 238 ; et al. v. Constant, 2 Hall's R. 185 ; McDonald Hamilton, Exr., v. Collender's Exrs., 1 Dal. v. Pickett, 2 Bail. R. 617 ; Black v. Schooler, R. 420 ; Gregory v. Thomas, 20 Wend. R. 2 McC. R. 293 ; Bonaffe v. Woodbury, 12 17, This, however, is a question to be deter- Pick. R. 456 ; Hussey v. The Manufacturers' mined by the intention of the parties ; United and Mechanics' Bank, 10 Id. 415 ; Martin v. States V. Lyman, 1 Mason's R. 482 ; Van Draher, 5 Wat. R. 544 ; Moorhead v. The Vleet et al. v. Jones et al., Spencer's R. 341 ; West Branch Bank, 3 Wat. & Serg. R. 550 ; Wallace V. Farman, 4 Wat. R. 378 ; Sellers Boutwell v. Mason et al., 12 Vt. R. 608; V. Jones, 22 Pa. St. R. 425 ; Shaw v. The Randall v. Parramore et al., 1 Fla. R. 410; Church, 39 Id. 226; and that intention, in Read v. Boardman, 20 Pick. R. 441; Pin- doubtful cases, may be ascertained by the in- dall's Exrx. v. The Bank of Marietta, 10 terventionof a jury ; Hurt?;. Boiler, 15 Serg. Leigh's R. 481; Miller v. Trevilian, 2 Rob. A Raw. R. 162; Jones v. Shawhan, 4 Wat. A (Va.) R. 2; Jackson v. Bailey, 12 III. R. 206 OF CnOSES IN ACTION. interest, the payment is considered to be applied in the first place in dischars-e of the interest then due, and the surplus, if any, in 159; McTavish et nl. v. Carroll, 1 Md. Ch. Decisions, 160 ; Treadwell v. Moore, 34 Maine R. 112; Caldwell v. Wentworth. U N. H. R. 431 ; Spring Garden Association v. Trades- men's Loan Association, 46 Pa St. R. 495 ; Crisler v. McCoy, 33 Missi. R. 445 ; Calvert V. Carter, 18 Md. R. 73 ; and, if the debtor does not make the application, the creditor may ; Speck v. The Commonwealth, 3 Wat. & Serg. R. 328 ; Berghaus v. Alter, 9 Wat. R. 387 ; The Mayor and Commonalty of Alexan- dria V. Patten et al., 4 Cranch's R. 317 ; Fields et al. v. Holland et al., 6 Id. 8 ; Mann V. Marsh, 2 Caines's R. 99 ; Reynolds et al. v. McFarlane, Overton's R. 488 ; Arnold v. Johnson, 1 Scam. R. 196 ; McFarland et al. v. Lewis et al., 2 Id. 345 ; Hillyer v. Vaughan, 1 J. J. Marsh. R. 583 ; Briggs v. Williams et al., 2 Vt. R. 283 ; Rossian et al. v. Call et al., 14 Id. 83 ; Selleck v The Sugar Hollow Turnpike Co., 13 Conn. R. 453 ; Rackley v. Pearce, 1 Kelly's R. 241 ; Sturges et al. v. Robbins, 7 Mass. R. 301 ; Brewer v. Knapp et al., 1 Pick. R. 332 ; Logan v. Mason, 6 Wat. & Serg. R. 9 ; The Stamford Bank v. Benedict, 15 Conn. R. 438 ; Mitchell v. Dall, 4 Gill. & Johns. R. 361 ; Clark et al. v. Bur- dett, 2 Hall's R. 197 ; Van Rensselaer's Exrs. V. Roberts, 5 Denio's R. 470 ; Hamilton v. Benbury, 2 Hayw. R. 385 ; Niagara Bank v. Rosevelt, 9 Cow. R. 409 ; Taylor et al. v. Jones, 1 Cart. R. 17 ; McTavish et al. v. Carroll, 1 iMd. Ch. Decisions, 160 ; Sawyer, Admr., v. Tappan, 14 N. H. R. 352 ; Cald- well V. Wentworth, Id. 431 ; Philad'a Mer- cantile Loan Association v. Moore, 47 Pa. St. R. 233; Hargraves v. Cooke, 15 Geo. R. 321 ; but, where neither debtor nor creditor makes an appropriation, the court will do it for them ; Speck v. The Commonwealth, 3 Wat. & Serg. R. 328 ; Berghaus v. Alter, 9 Wat. R. 387 : Fields et. al. v. Holland et al., 6 Cranch's R. 8 ; Cremer i: Higginson, 1 Mas. R. 338 ; McTavish et al. v. Carroll, 1 Md. Ch. Decisions, 160 ; Caldwell v. Went- worth, 14 N. H. R. 431 ; Pierce v. Knight, 31 Vt. R. 701. The intention of the debtor to appropriate a payment, may, however, be indicated by the circumstances of the case, as well as by an express direction ; Tayloe v. Sandiford, 7 Wheat. R. 14 ; Mitchell v. D;ill, 2 Har. & Gill's R. 160, S. C. 4 Gill. A Johns. R. 361 ; Fouke V. Bowie, 4 Har. & Johns. R. 566 ; Robert et al. v. Garnie, 3 Caines's R. 14 ; West Branch Bank v. Moorehead, 5 AVat. & Serg. R. 542 ; Dickinson College v. Church, 1 Id. 462; Schnell f. Schroeder, Bailey's Eq. 335 ; Scott v. Fisher, 4 Mon. R. .387 ; Stone V. Seymour, 8 Wend. R. 404, S. C. 15 Id. 19; Terhune v. Colton, 1 Beasley's R. 233, 312; and so of the intention of the creditor ; Star- rett V. Barber, 20 Maine R. 457 ; Allen v. Kimball, 23 Pick. R. 473 ; Upham et al. v. Lefavour, 11 Mete. R. 174; Allen v. Culver, 3 Denio's R. 285 ; Lindsey v. Steven, 5 Dana's R. 104 ; and consequently, the discretionary power of the court, to appropriate a payment not expressly applied by either debtor or cred- itor, is to be controlled by the intention of the parties, as determined by all the circumf stances of the case ; Emery v. Tichout, 13 Vt. R. 15 ; Robinson et al. v. Doolittle et al., 12 Id. 246 ; Hillyer v. Vaughan, 1 J. J. Marsh. R. 583 ; The Stamford Bank v. Benedict, 15 Conn. R. 438; Cheston y. Wheelwright, Id. 562 ; Portland Bank v. Brown, 22 Maine R. 295; Smith v. Lloyd, 11 Leigh's R. 512; Caldwell V. Wentworth, 14 N. II. R. 431 ; Johnson's Ap. 37 Pa. St. R. 270; Smith v. Brooke, 49. Id. 147. Thus, in cases of running accounts, payments are to be applied to the debts antecedently incurred, in order of time ; Speck V. The Commonwealth, 3 Wat. & Serg. R. 328 ; Berghaus v. Alter, 9 Wat. R. 387 ; United States v. Kirkpatrick et al., 9 Wheat. R. 720 ; Jones v. The United States, 7 How. R. 681 ; Boodyet al. v. The United States, 1 Woodbury & Minot's R. 151 ; Postmaster- General V. Furber, 4 Mas. R. 333 ; United States V. Wardwell et al., 3 Id. 82 ; Gass v. Stinson, 3 Suran. R. 99 ; McKenzie-y. Kevins, 22 Maine R. 138 ; Miller v. Miller, 23 Id 22 ; Smith V. Lloyd, 11 Leigh's R. 512 ; Fairchild V. Holly, 10 Conn. R. 176 ; Allen v. Culver, 3 Denio's R. 285 ; Ross's Exrs. v. McLauch- lan's Admr. etal., 7 Gratt. R. 86; McKee's Exrs. V. Commonwealth, 2 Grant's Cas. 23 ; OF DEBTS. 207 discharge j^^^o tanio of the principal. For no creditor would ap- ply any payment to the discharge of part of the principal, which Pierce v. Sweet, 35 Pa. St. R. 151 ; Antarctic, Sprague's Decs. 206 ; Price v. Cutts, 29 Ga. R. 142; and the appropriation will be made to the first items of such an account, which are secured, although the balance be unse- cured ; Gushing f. Wyman, 44 Maine R. 121 ; but see exceptions to this rule, in the case of collectors of taxes ; United States v. Patter- son, 7 Cranch. R. 572; Jones v. The United States, 7 How. R. 681 ; Seymour v. Van Slyck, 8 Wend. R. 404 ; Stone v. Seymour, 15 Id. 19 ; Postmaster v. Norvell, Gilpin's R. 107 ; City of St. Joseph v. Merlatt, 26 Misso. R. 233. So, where there are two debts, one bearing interest, and the other not, the pay- ment is to be appropriated to the debt bear- ing interest ; Gwinn v. Whittaker, 1 Har. & Johns. R. 754 ; Dorsey v. Gassaway, 2 Id. 402 ; Bacon v. Brown, 1 Bibb's R. 334 ; Beau- ton V. Rice, 5 Mon. R. 263 ; McTavish et al. V. Carroll, 1 Md. Ch. Decisions, 160; Scott V. Cleveland, 33 Missi. R. 447 ; McFadden v. Fortier, 20 111. R. 509 ; and a payment must be applied to a debt due, rather than to one not due ; McDowell v. The Blackstone Canal Co., 5 Mas. R. 11 ; Baker v. Stackhoole, 9 Cow. R. 420 ; Bacon v. Brown, 1 Bibb's R. 334; Stone v. Seymour, 15 Wend. R. 19; Upham et al. v. Lefavour, 11 Mete. R. 174 ; Lebleu v. Rutherford et al., 9 Robins. R. 95 ; Follain et al. v. Orillion, Id. 506 ; Tread- well V. Moore. 34 Maine R. 112; Caldwell v. Wentworth, 14 N. H. R. 431 ; Thomas v. Kelsey, 30 Barb. R. 268 ; Effinger v. Hender- son, 33 Missi. R. 449 ; and to a several, in preference to a joint debt ; Livermore v. Claridge, 33 Maine R. 428 ; and, to a legal, rather than to an illegal debt ; Hall v. Clem- ent, 41 N. H. R. 166 ; Rohan v. Hanson, 11 Cush. R. 44 ; Gill v. Rice, 13 Wis. R. 549. So, again, the appropriation by the court, in the case of two debts, one of which is se- cured, and the other not, must be made to the debt not secured; or, if both debts are secured, then to the one of which the security is most precarious ; Field et al. v. Holland et al., 6 Cranch's R. 8; Merrimack Co. Bank v. Brown, 12 N. H. R. 321 ; Portland Bank v. Brown, 22 Maine R. 295 ; Niagara Bank v. Rosevelt, 9 Cow. R. 410 ; Newman V. Meek, 1 Smed. & Mar. R. 331 ; Hammer's Admr. v. Rochester, 2 J. J. Marsh. R. 144 ; Blanton v. Rice, 5 Mon. R. 253 ; Smith v. Lloyd, 11 Leigh's R. 512 ; The Stamford Bank v. Benedict, 15 Conn. R. 438 ; Cheston V. Wheelright, Id. 562 ; Vance v. Monroe, 4 Gratt. R. 63 ; Upham et al. v. Lefavour, 11 Mete. R. 174 ; The Ordinary v. McCollum, 3 Strobh. R. 494 ; Blackhouse et al. v. Patton et al., 5 Pet. R. 161 ; Briggs v. Williams et al., 2 Vt. R. 283 ; Emery v. Tichout, 13 Id. 15 ; Hilton V. Burley, 2 N. H. R. 193 ; Black- stone Bank v. Hill, 10 Pick. R. 129 ; Capen v. Alden, 5 Mete. R. 268 ; Jones v. Kilgore, 2 Richard Eq. R. 64 ; McTavish et al. v. Car- roll, 1 Md. Ch. Decisions, 160 ; but see, to the contrary, Gwinn v. Whitaker, 1 Har. & Johns. R. 754 ; Dorsey v. Gassaway, 2 Id. 402 ; Pattison v. Hall, 9 Cow. R. 747 ; Robin- son et al. V. Doolittle et al., 12 Vt. R. 246 ; Watt V. Hoch, 25 Pa. St. R. 411. In accord- ance, also, with this doctrine, a partial pay- ment, unappropriated by either party, must be applied to tlie interest, rather than to the principal of the debt ; Spires v. Hamot, 8 Wat. & Serg. R. 17 ; Commonwealth, for the use, &c., t;.Vanderslice et al., Admrs., 8 Serg. & Raw. R. 425 ; Smith v. Admx. of Shaw, 2 Wash. C. C. R. 167 ; Tracey v. Wikoff, 1 Dall. R. 124 ; Primrose v. Hart, Id. 378 ; Steele v. Taylor, 4 Dana's R. 445 ; Story v. Living- ston, 13 Pet. R. 360 ; The United States v. McLemore, 4 How. R. 286 ; Dean v. Wil- liams, 17 Mass. R. 417 ; Commonwealth v. Miller's Admrs., 8 Serg. & Raw. R. 452 ; Gwin V. Whitaker, 1 Har. &, Johns. R. 754 ; Frazier v. Hyland, Id. 98 ; Jones v. Ward, 10 Yerg. R. 161 ; Guthrie et al. v. Wicklifi"e, 1 Marsh. R. 584 ; Hart v. Derman, 2 Fla. R. 445 ; The Union Bank of La. v. Kindrick, 10 Rob. R. 51 ; Williams f. Houghtaling, 3 Cow. R. 87 ; Stoughton v. Lynch, 2 Johns. Ch. R. 209 ; Lewis's.Exr. v. Bacon's Exrs., 3 Hen. A Munf. R. 89 ; Edes v. Goodridge, 4 Mass. R. 103; Fay ;;. Bradley et al., 1 Pick. R. 194; Meredith v. Bank.«, 1 Halst. R. 408 ; Lightfoot V Price, 4 Hen. system of bankruptcy throughout the United States. The act was limited to five years, and from thence to the end of the next session of Congress ; but the act was repealed within that period, by the act of December 19th, 180.3, and the system was not renewed until 1841. "An effort was made in Congress, in the spring of 1840, to re-establish a uniform sys- tem of bankruptcy, and the subject received an able and thorough investigation and discus- sion, but Congress could not agree on the prin- ciples of the system, and the eflfort failed. The bill which was reported and debated, enabled debtors of every description and class, to take advantage of it at their option, and to be thereby completely discharged from their debts, without the co-operation or assent of any creditor. Some of the members of Con- gress were opposed to any bankrupt system on the part of the United States, as it would enlarge the powers of the Federal courts to a great extent, and lead to the creation of a crowd of officers and agents to administer it, and probably to much abuse and corruption. They preferred that the administration of bankrupt and insolvent laws, should remain with the State governments. The compul- sory process of bankruptcy at the instance of the creditor, was urged by others as essential to the system, and that the provisions should even be extended, so as to include corpora- tions, instituted under State authority, for banking, manufacturing, commercial, insur- ance, and trading purposes. But this last provision was objected to as most inexpedi- ent, if not absolutely beyond the purview of the Constitution. It was apprehended that such a power would lead to infinite abuse, and become expensive and extremely op- pressive, and would tend to break up all the moneyed and business institutions created un- der State laws, or render the power of control of them most formidable and dangerous. The advocates of the bill contended that bank- ruptcy was a general term, and meant failure, and was equally applicable to all persons of broken fortunes ; that the Constitution was not intended to be bound to the English system of 218 OF CHOSES IN ACTION. The wliole of the law of bankruptcy was until recently governed by the act to amend and consolidate the laws relating to bank- bankruptcy, and that Congress had the same power as the British Parliiiment, to extend the application of it, and that it might and ought to extend it, to all classes of debtors who had become disabled and overwhelmed in the peculiar and severe calamity of the times; that though the assent of at least a majority of the creditors to the debtor's discharge, was deemed by the New York Board of Trade, to be essential to the stability of credit, the rights of creditors, the claims of justice, and the reputation of the country, it was insisted upon, as a compensation for this omission, that the operation of the act would be useful to creditors, though the debtor should be en- abled to obtain the benefit of a discharge without their consent or action, for it would put an end to the pernicious practice of giving preference among creditors, and ena- ble the assets of insolvents to be distributed equally among the creditors. " The bil 1 was strongly opposed by other mem- bers of Congress, on constituiional grounds, reaching to the fundamental principles of the bill. It was contended that the power given to Congress, to establish uniform laws on the subject of bankruptcy, was one incidental to the regulation of commerce, and applicable only to merchants and traders, or persons es- sentially engaged, in various w.aysand modes, in trade and commerce. That the term bank- ruptcy was adopted in the Constitution, as it stood defined and settled in the English law, where it had a clear and definite meaning ; that it was universally taken and understood in that sense, contemporaneously with the adoption of the constitution ; and it received that practical construction, and none other, in the bankrupt act of 1800 ; that the Eng- lish bankrupt laws discharged the bankrupt from his debts and contracts, and were coer- cive on the debtor, and put in action at the instance of creditors, and at their instance only ; that the proceeding was for the equal benefit of all the creditors, and its justice and policy, as applicable to that class of debtors, was founded on the peculiarly hazardous busi- ness of trade and commerce, and the necessity of large credits to sustain an extensive foreign and domestic trade ; that there was a marked difference between bankrupt and insolvent laws, in the jurisprudence of England and of America, and which had been recognized by the Supreme Court of the United States ; that insolvent laws were left to the cognizance of the individual States, each of which had its own system of insolvent laws, and which the bill before the House would entirely super- sede, for it was in fact a general and sweeping insolvent law ; and it was apprehended, that its operation on credit, and the popular sense of the legal and moral obligation of contracts, would be disastrous. ' ' The efi'ort to establish a national bankrupt law, was renewed at the next session of Con- gress, and was successful. An act of Con- gress, "To establish a uniform system of bankruptcy throughout the United States," was passed the 19th of August, 1841. It was declared to apply to all persons whatsoever, residing within the United States, who owed debts, not created in consequence of a defal- cation as a public officer, or as executor, ad- ministrator, guardian, or trustee, or while acting in any other fiduciary character, and who should by petition on oath, setting forth a list of their creditors, and an inventory of their property, apply to the District Court for the benefit of the act, and declare themselves unable to meet their debts and engagements. The act was further declared to apply to all persons being merchants, or using the trade of merchandise, and all retailers of mer- chandise, and all bankers, factors, brokers, underwriters, or marine insurers, owing debts to the amount of two thousand dollars ; who should be liable to become bankrupts, upon petition of one or more of their creditors to the amount of five hundred dollars ; pro- vided they had absconded, or fraudulently procured themselves or their property, to be attached or taken in execution, or had fraud- ulently removed, or concealed, or assigned, or sold their property. The bankrupt when duly discharged, was declared to be free from all his debts. The first provision is a sweep- ing insolvent law, and applies to all debtors, and upon their own voluntary application ; OF BANKRUPTCY OF TRADERS. 219 rupts((2) which came into operation on the 11th of Octoher, 1849, and hy which all the previous acts were repealed. Of these the {a) Stat. 12 & 13 Vict. c. 106. the second is confined to merchants and trad- ers, and the act is put in operation only at the instance of the creditors. The numerous details of the statute, and the many questions which were raised, discussed, and decided, in the District and Circuit Courts of the United States, in the execution of the act, cannot be noticedin the limited space allowed in this note, nor would they be any longer interest- ing, since the entire statute was repealed by Congress, on the 3d of March, 1843. The provision in the bankrupt act, which rendered it a general insolvent act, and was the one almost exclusively in operation, gave occasion to serious doubts, whether it was within the true construction and purview of the Consti- tution, and it was that branch of the statute, that brought the system, and I think justly, into general discredit and condemnation, and led to the repeal of the law. In the cases of Kunzler v. Kohans, and of Sackett v. An- dross, 5 Hill's N. Y. Rep. 317, 327, the con- stitutionality and construction of the bank- rupt act of Congress of 1841, was largely dis- cussed, and it was held that the voluntary, as well as the other branch of the act, was con- stitutional, and applied as well to debts cre- ated before, as after its passage. Mr. Justice Bronsox, in a very elaborate opinion, dis- sented from both of these propositions. And Judge Wklls, of the United States District Court of Missouri, in the case of Edward Kleen, 2 N. Y. Legal Observer, 184, after a very full consideration of the subject, also decided that the provision in the act of Con- gress of 1841, for the discharge of a voluntary debtor from his debts and future acquisitions, without payment or assent of his creditors, was unconstitutional."' The foregoing note, taken from Kent's Commentaries, Ac, vol. 2, p. 391, n. a, gives a general view of the provisions contained in the repealed bankrupt law, and its scope ; the practical bearing of this law is probably no longer interesting, but for a full consideration thereof, see " Owen^ on Bankruptcy ;" "The Bankrupt Law of the United States, with a Commentary containing a full explanation of the law of Bankruptcy," published in 1841, in Philadelphia ; a Note at the end of Vol. 2, Part II, of " Starkie on Evidence ;" and two tracts published in New York, in the year 1842, one by J. B. Staples, and entitled, "The General Bankrupt Law," &c., and the other by Geo. A. Bicknell, Jr., and entitled, "A Commentary on the Bankrupt Law of 1841, showing its operation and effect. " Since the publication of the last American edition of this work, a renewed attempt has been made to procure the passage of a gen- eral bankrupt act, embodying such provis- ions, as to create a uniform sj'stem of bank- ruptcy throughout the United States. This eifort was made during the session of Con- gress of 1861-1862. The proposed act was framed, upon a care- ful examination and comparison of the pro- visions of the recent English Bankrupt Act, which went into operation in October, 18G1, the existing insolvent laws of the State of Massachusetts, the bankrupt acts of the United States, of 1800 and 1841, the insol- vent laws of the State of New York, and other kindred statutes. It was thought that it combined all themost salutary provisions of these several statutes, so far as they were ca- pable of application, to a uniform system of bankruptcy in the United States. It provi- ded for the full and unconditional discharge of the debtor (except as to certain fiduciary debts) , upon the surrender of his entire estate for distribution, without preference, among all his creditors, and upon his compliance with the requirements of the act. It provided for the election of the assignee in bankruptcy by the creditors, and gave them the super- vision of the management and winding up of the estate, under the direction of the court. It also permitted, by provisions anal- ogous to the French code of bankruptcy, as well as of the English law, the winding up of bankrupts' estates, at the option of three- fourths in value of the creditors, by trustees, under the inspection of creditors, in lieu of the more formal proceedings in bankrujjtcy. The various details of the act were designed 220 OF cnosES in action. most important was the statute of 6 Geo. 4, c. 16, " An Act to amend the Laws relating to Bankrupts," which had been amended and altered by various others, (i) the provisions of which, wdth some alterations, were consolidated in the act of 1849. But ex- tensive alterations have now been made by the Bankruptcy Act, 1861,(e) inider which })ersons not in trade have for the first time become liable to be made bankrupts. But as there is still a marked distinction between the law of bankruptcy as applied to traders and non-traders, the present chapter will be entirely devoted to the bankruptcy of traders. Traders within the meaning of the laws relating to bankrupts are— all alum makers, apothecaries, auction- eers, bankers, bleachers, brokers, brickmakers, builders, calen- r*i orn derers, carpenters, curriers, cattle or *8heep salesmen, coach proprietors, cow keepers, dyers, fullers, keepers of inns, taverns, hotels, or cotFee houses, lime burners, livery-stable keepers, market gardeners, millers, packers, printers, shipowners, ship- wrights, victuallers, warehousemen, wharfingers, scriveners re- ceiving other men's moneys or estates into their trust or custody, persons insuring against perils of the sea, and all persons using the trade of merchandise by way of bargaining, exchange, barter- ing, commission, consignment, or otherwise in gross or by retail, and all persons who either for themselves, or as agents or factors for others, seek their living by buying or selling, or by buying and letting for hire, or b}' the workmanship of goods or commodities. (b) 1 &2 Will. IV, c. 56; 3 &4 Will. IV, c. 47; 1 &2 Vict. c. 110; 2 Vict. c. 11 ; 2& 3 Vict. c. 29 ; 5 & 6 Vict. c. 122 ; 7 & 8 Vict. c. 96 ; 8 & 9 Vict. c. 48 ; 10 & 11 Vict. c. 102 ; 11 & 12 Vict. c. 86. (r) Stat. 24 & 25 Vict. e. 134. to give uniformity and efficiency to the sys- tary bankruptcy upon the petition of the teui, and to meet the various exigencies of debtor himself, and involuntary bankruptcy, its administration, in the extended territory upon the petition of one or more of the cred- to which it wiis to apply. itors of the bankrupt, under the regulations The project, however, failed to meet with therein prescribed ; but limiting the dis- the requisite support, and the proposed act charge of a debtor to his first bankruptcy, did not become a law. unless under a second bankruptcy, he ob- Repeated eflForts have been made at subse- tains the consent of three-fourths in value quent sessions of Congress, to procure the of his creditors, or can prove payment of passage of a bankrupt bill, but these also all debts owing by him at the time of his were unsuccessful. previous discharge. A bill has also been reported at the pres- For the law of Bankruptcy, see Hilliard on_ ent session of Congress (1865-1866), con- Bankruptcy and Insolvency, whose Treatise taining the essential features of the bill on these subjects, embodies the principles of above referred to, and providing for volun- both English and American decisions. OF BANKRUPTCY OF TRADERS. 221 But no farmer, grazier, common laborer, or workman for hire, receiver-general of the taxes, or member of or subscriber to any incorporated commercial or trading companies established by charter or act of Parliament, shall be deemed as such a trader liable to become bankrupt.((i) An attorney or solicitor, as such, is not a trader within the bankrupt law ; but if he is in the habit of receiv- ing his clients' money into his own hands and investing it for them, and charging a compensation for so doing, in addition to his charges for other professional business, he will be liable to become bank- rupt as a scrivener receiving other men's moneys into his trust.(e) An alien or denizen is within the bankrupt law;(/) and so is a married woman carrying on trade for her separate use by the custom of London, (^) or whilst her husband is undergoing sentence of transportation. (A) But an infant under the age of twenty-one years cannot '^be a bankrupt, because by the law of Eng- land he cannot be made liable on contracts entered into by "- -• him in the course of trade.(i) A person within the bankrupt laws becomes bankrupt by com- mitting an act of bankruptcy. The following acts, if done with intent to defeat or delay the creditors of a trader, are acts of bank- ruptcy, namely, if any such trader shall depart this realm, or being out of this realm shall remain abroad, or depart from his dwelling- house, or otherwise absent himself, or begin to keep his house, or suffer himself to be arrested or taken in execution for any debt not due, or yield himself to prison, or suifer himself to be outlawed, or procure himself to be arrested or taken in execution, or his goods, moneys, or chattels to be attached, sequestered, or taken in execution, or make or cause to be made, either within this realm or elsewhere, any fraudulent grant or conveyance of any of his lands, tenements, goods, or chattels, or make or cause to be made any fraudulent surrender of any of his copyhold lands or tene- ments, or make or cause to be made any fraudulent gift, delivery, (d) Stat. 12 & 13 Vict. c. 106, s. 66. ifi) Malkin v. Adams, 2 Rose, 28 ; Ex parte Bath, Mont. 82, 84, where the cases are col- lected. See, also, Wilkinson v. Candiish, 5 Exeh. Rep. 91, 97; Ex parte Dufaur, 2 De Gex, M. & G. 246. (/•) .Stat. 12 & 13 Vict. «. 106, s, 277. (g) Ex parte Carrington, 1 Atk. 206. (/t) Ex parte Franks, 7 Bing. 762, E. C. L. R. vol. 20 ; 1 M. & Scott, 1. (t) Belton V. Hodges, 9 Bing. 305, 370, E. C. L. R. vol. 23. 222 OF CHOSES IN ACTION. or transfer of any of liis goods or chattels.(A) It is also an act of bankruptcy for a trader to lie in prison for debt for fourteen days, or, having- been committed or detained for debt, to escape out of prison or custody.(/) But it is now provided that no debtor shall be adjudged bankrupt on the ground of having lain in prison as aforesaid, unless, having been summoned, he shall not otfer such security for the debt in respect of which he is imprisoned or de- r*l 071 ^^^^^^ ^^ *^^^ commissioner or registrar, whose duty *it *- " -■ would otherwise be to adjudicate, shall deem reasonably suiiicient.(???^) Most of the above acts of bankruptcy have been such ever since a bankrupt was first defined by the statute of Elizabeth " touching orders for bankrupts."(w) Bankruptc}^ was then con- sidered as a crime, and the bankrupt was called " an ofi:ender."(o) But in modern times bankruptcy has been looked upon as the proper remedy for a trader in embarrassed circumstances. lie gives up all his property to his creditors, to be divided ratably amongst them ; and, if his behavior has been free from serious blame, he obtains a discharge from past liabilities, together with a small allowance to enable him to begin the world again. (^j) An act of bankruptcy may accordingly now be committed by merely filing, in the ofiice of the chief registrar, or with the registrar of a district court of bankruptcy, or of a county court having jurisdiction in bankruptcy, a formal declaration signed by the debtor, and attested by a registrar of the court, or by an at- torney or solicitor, that he is unable to meet his engagements, provided a petition for adjudication of bankruptcy be filed within two calendar months.(g') And a petition for adjudication of bank- ruptcy, under which the debtor is now declared bankrupt, (r) may be filed by any debtor against himself; and the filing of such pe- tition is now an act of bankruptcy, without any previous declara- tion of insolvency by such debtor.(5) But every debtor petition- (/?■) Stat. 12 & 13 Vict. c. 106, s. 67 ; Ex parte Bland, 6 De Ges, M. & G. 757 ; Johnson V. Fesenmeyer, 25 Beav. 88 ; 3 De Gex & Jones, 13 ; Pennell v. Reynolds, 11 C. B., N. S. 709, E. C. L. R. vol. 103. (/) Stat. 24 & 25 Vict. c. 134, s. 71. (w) Stat. 13 Eli#. c. 7. (m) Stat. 24 & 25 Vict. c. 134, s. 71. (o) Stat. 13 Eliz. c. 7, s. 10 ; 2 Black. Com. 471. (p) Post, p. 143. (r) Stat. 12 & 13 Vict. c. 106, S.-89. (q) Stat. 24 & 25 Vict. c. 134, s. 72. («) Stat. 24 & 25 Vict. c. 134, s. 86. OF BANKRUPTCY OF TRADERS. 223 ing against liimself ninst file in conrt a full, true, and accurate statement, verified by the oath of the petitioner, of his debts and ^liabilities of every kind, and of the names and residences ^, ^ ^^^ of his creditors, and of the causes of his inability to meet •- - J his engagements, within three da^'S after filing his petition. (^) So an act of bankruptcy may now be lawfully concerted or agreed upon between the bankrupt and any creditor or other person,(M) which was not the case at the time when bankruptcy was con- sidered an offence, (z) "We have ah-eady seen that the seizure and sale of the goods of a trader under an execution upon any judgment in a personal action for the recovery of an}^ debt or money demand exceeding fifty pounds is an act of bankruptcy. (^) The filing of a petition by or against a debtor in any court having jurisdiction for the relief of insolvent debtors in insolvency or bankruptcy in any of her majesty's dominions, colonies, or dependencies, and the adju- dication of an act of insolvency or bankruptcy on such petition, is also evidence of an act of bankruptcy. (2:) An act of bank- ruptcy may also be committed by non-payment after what is called a judgment debtor summons. Every judgment creditor who is entitled to sue out a writ of capias ad satisfaciendum[a) against the debtor in respect of any debt amounting to 50/., ex- clusive of costs, may at the end of one w^eek from the signing of judgment sue out against any trader, whether he be in custody or not, a summons called a judgment debtor summons, requiring him to appear, and to be examined respecting his ability to pay the debt.(6) In like manner, where any decree or order of a court of equity, or order in bankruptcy, *insolvency, or p-;.-,f,A-| lunacy, directing the payment of money, is disobeyed by ^ ^ ^ the debtor, after having been duly served on him, and the person entitled to the money, or interested in enforcing payment of it, has obtained a peremptory order fixing a day for payment, and the debtor, being a trader, shall not within seven days after ser- (t) Stat. 24 & 25 Vict. c. 134, s. 93. Gen. Order in Bankruptcy, Oct. 1861, schedule 5. (u) Stat. 12 & 13 Vict. c. 106, s. 115. (x) Ex parte Gouthwaite, 1 Rose, 87 ; Ex parte Brookes, Buck. 257. (y) Stat. 24 & 25 Vict. c. 134, s. 73, ante, p. 98. (z) Sect. 75. (a) See ante, p. 100. (h) Stat. 24 & 25 Vict. c. 134, s. 76. 224 OF CHOSES IN ACTION. vice on him of the peremptoiy order, or withiu seven days after the day fixed by the peremptory order for payment (which shall last happen), pay the money, or secure, or tender, or compound for it, to the satisfaction of the creditor, the creditor may at the end of those seven days sue out against the debtor a judgment debtor summons.((?) This summons must be served on the debtor personally, if he be in England, unless the court issuing the same should direct that service in some other manner should be good service. (t?) Upon the appearance of the debtor, he may be ex- amined on oath by or on behalf of the creditor and by the court respecting his ability to satisfy the debt, and for the discovery of property applicable in that behalf; and he must produce on oath or otherwise his books and papers relating to his property as the court shall think fit.(e) And if after service of such summons the debtor shall not pay the debt and costs, or secure or compound for the same to the satisfaction of the creditor, the court may on the appearance of the debtor, or if he shall not appear, having no lawful impediment allowed by the court, adjudge him bankrupt; and where the debtor has not appeared, notice of such adjudica- tion is to be served upon him in the same manner as is provided with respect to service of the summons.(/) The debtor is then allowed seven days from such notice, or such further time as the court shall think fit, for appearing to show cause against the ad- ■- ^^^-, indication: and if he ^appear vdthin the time allowed, r 1301 ^ i^ i '- -^ and show" sufficient cause, the adjudication may be an- nulled; otherwise at the end of the time allowed, or on the judg- ment of the court against the sufiiciency of the cause shown, the adjudication will become absolute, and notice thereof is to be forthwith given in the London Gazette ; and the adjudication will relate back to the service of the summons or the insertion of the first notice in the London Gazette, as the case may be.(_9') The act of 1849, contains a further provision, that on a proper affidavit of debt being made by any creditor, stating, amongst other things, the delivery to the trader personally, or to some adult inmate at his usual or last known place of abode or busi- ness, of Avritten particulars of his demand, with notice requiring (f) Stat. 24 & 25 Vict. c. 134, s. 77. (/) Sect. 83. {d) Sect. 79. (ff) Stat. 24 & 25 Vict. c. 134, s. 84. 'e) Sect. 82. OF BANKRUPTCY OF TRADERS. 225 immediate payment, such trader may be summoned to appear before tbe bankrupt court either to admit the demand, or to swear that he verily beheves that he has a good defence to sucli demand or to some part of it. And in such case the court is empowered to require the trader to enter into a bond with two sureties to pay such sum as shall be recovered, together with such costs as shall be given in any action which shall have been or shall be brought for the recovery of such demand or any part thereof (A) And if he admits the demand, and does not satisty the creditor within seven days next after the filing of such admission, he commits an act of bankruptcy on the eighth day after the filing of such admission, provided a petition for adjudication of bankruptcy be filed ao-ainst him within two calendar months from the filing of the creditor's afiidavit.(?) After such a summons, an admission of debt may be made with the same effect, without the trader's appearing *in court, provided it be made in the prescribed form, and there be present some attorney of one of her L "^ J majesty's superior courts of law on behalf of such trader, ex- pressly named by him and attending at his request, to inform him of the eifect of such admission before the same is signed by him, and pro\dded also that such attorney do subscribe his name thereto as a witness to the due execution thereof, and in such attestation declare himself to be attorney for the said trader, and state therein that he subscribes as such attorney.(A;) If the trader do not appear when summoned, or if on appearing he refuse to sign the admission of debt,(/) or admit only part, without swear- ing to his belief that he has a good defence to the debt or to the part not admitted, and if required by the court enter into such a bond as is mentioned above, then he commits an act of bank- ruptcy on the eighth day after service of the summons,, unless within seven days from such service, or within such enlarged time as may be granted to him, he satisfies the creditor, or enters into a bond with two sureties, to be approved by the court, to pay such sum and costs as shall be recovered in any action for the debt; but the petition for adjudication of bank- ruptcy must be filed within two calendar months from the filing (h) Stat. 12 & 13 Vict. c. 106, ss. 78, 79 ; see Ex parte Wood, 4 De Gex, M. A G. 875.. (t) Sect. 81. (it) Stat. 12 & 1.3 Vict. c. 106, s. 84. (/) Sect. 83. 15 226 OF cnosES in action. of tliG creditor's afficlavit.(m) No person is now liable to become bankrupt by reason of any act of bankrnptey committed more than twelve calendar months prior to the tiling of any petition for adjudication of bankruptcy against him.(/;) When an act of bankruptcy has been committed by a trader, any creditor or creditors may petition the Court of Bankruptcy for an adjudication of bankruptcy against him, provided the amount of their debts be as follows: the debt of any single creditor, or of two or more being *partners, 50^. or up- '- "-^ w^ards; the debt of two creditors, 701. or upwards; and the debt of three or more creditors, 100^. or upwards; and every person w^ho has given credit to any trader upon valuable con- sideration for any sum payable at a certain time, which time shall not have arrived when such trader committed an act of bankruptcy, may petition or join in petitioning, whether he shall have any security for such sum or uot.(o) The debt, however, must be a legal debt, and one for which the creditor might sue at law in his own name.(jo) The truth of the petition is sworn to by the petitioning creditor; and immediately after it is filed, in the case of a debtor petitioning against himself, and after adjudication, in the case of a petition filed against a debtor who shall be adjudged bankrupt, the bankrupt personally, and all his estate and effects of what nature or kind soever become subject to the law^ of bankruptcy. (g) If the petitioning creditor shall not proceed and obtain adjudication within three days after his peti- tion shall have been filed, or within such extended time as shall be allowed by the court, the court may at any time, on the expi- ration of such three days, or of such extended time, as the case may be, upon the petition of any other creditor to the amount re- quired to constitute a petitioning creditor, proceed to adjudicate on such last-mentioned petition. And if a debtor, petitioning against himself, does not obtain adjudication within twenty-four hours after filing such petition, the court may proceed to adjudge the debtor a bankrupt on the petition of any competent cred- (w) Sects. 80, 82 ; see Oldfield v. Dodd, 8 Ex. Rep. 578 ; S. C. 17 Jur. 261. (91.) Sect. 88. (o) Stat. 24 & 25 Vict. c. 134, s. 89. {p) Medlicot's Case, 2 Str. 899 ; Ex parte Sutton, 11 Ves. 163. iq) Stat. 24 & 25 Vict. c. 134, s. 87. OF BANKRUPTCY OF TRADERS. 227 itor.(r) In the computation of debts for the purposes of any such petition, there shall be reckoned as debts sums due to creditors liolding mortgages or other available securities or liens, af- ^ ter deducting *the value of the property comprised in such '- ^ mortsrag-es, securities, or liens, and such interest and costs as shall be due in respect of any of the debts ; but there shall not be reckoned the amount of the debts in respect of which the petitioner has al- ready taken the benefit of insolvency, protection, or bankruptcy, or debts barred by any statute of limitations. (6-) The words taking the benefit of insolvency, &c., appear in this place to be used for taking dividends under any such insolvency, &c. If the trader shall, after the filing of a petition for adjudication of bankruptcy against him, pay to the petitioning creditor any money, or give him any satisfaction or security for his debt, or any part thereof, whereby he may receive more in the pound in respect of his debt than the other creditors, such trader thereby commits an act of bankruptcy; and if adjudication of bankruptcy shall have been made under such petition, the court may either declare such ad- judication to be valid, and direct the same to be proceeded in, or may order it to be annulled, and a new petition for adjudication may be filed, which may be supported by proof either of such last-mentioned or of any other act of bankruptcy. (^) Formerly a commission of bankruptcy under the great seal issued in every case, whereby certain persons were appointed com- missioners for the purpose of directing that particular bank- ruptcy.(M) Subsequently a Court of Bankruptcy was erected in London, and certain fixed commissioners appointed, by any one of whom the duties of a commissioner were to be performed in all cases of bankruptcies in London. (x) The creditor presented a formal petition to the Lord Chancellor, whereupon a fiat in bank- ruptcy issued, whereby the *creditor was authorized to [-*-jq4-] prosecute his complaint against the trader in the Court of ^ Bankruptcy, or before one of the commissioners of that court.(?/) And more recently fixed commissioners were appointed throughout (r) Sect. 96. (0 Stat. 12 & 13 Vict. c. 106, s. 71. (s) Stat. 24 & 25 Vict. c. 134, s. 97. (It) Stut-s. 13 Eliz. c. 7, s. 2; 6 Geo. IV, c. 16, s. 12. {X) Stat. 1 & 2 Will. IV, c. 56. (y) Stat. 1 A 2 Will. IV, c. 56, s. 12. 228 OF CHOSES IN ACTION. the country, each of whom had a separate district, and formed a court of record. (^) But by the Bankruptcy Act, 1861, jurisdiction in bankruptcy is now vested in the judges of the County Courts, except those of the metropolis.(a) And provision has been made for the reduction of the number of the Loudon commissioners to three.(6) And lier Majesty is empowered, upon any vacancy in the office of county commissioner, to transfer, by order in Coun- cil, the jurisdiction of such commissioner to any of the judges of the County Courts within the district. (c) The fiat was aboUshed by the act of 1849 ; and tlie debt, the trading, and the act of bankruptcy liaving been proved, the trader is adjudged a bankrupt by the couH to which the petition is pre- sented ;(o^ and a duplicate of the adjudication is then served on the bankrupt, who is allowed seven days, or such further time as the court shall think fit, to show cause against the adjudication ; and if, at the expiration of that time, he can show no cause, or if the court adjudge the cause shown to be insufficient, notice of the adjudication is forthwith advertised in the London Gazette. But notice of the adjudication may be advertised immediately, with the consent of the bankrupt testified in writing under his hand before the court. (e) *K the bankrupt do not commence proceedings to dis- *- -^ pute the petition for adjudication, and prosecute the same with diligence and effect within two calendar months after the advertisement (if he were within the L^nited Kingdom at the date of the adjudication), or within three calendar months (if in any other part of Europe), or within a twelvemonth (if elsewhere) ; the Gazette containing the advertisement is conclusive evidence in all cases as against such bankrupt, and in all actions by his assignees for his debts, that he became a bankrupt previously to the date and filing of the petition for adjudication, and that the petition was filed on the day stated in the Gazette.(/) (z) stats. 5 & 6 Vict. o. 122, s. 59 et seq.; 12 k 13 Vict. c. lOfi, ss. 6-11. (a) Stat. 24 k 25 Vict. c. 134, s. 3. (b) Sect. 2. (c) Sect. 4. (d) Stats. 12 & 13 Vict. c. 106, s. 101 ; 24 & 25 Vict. c. 134, ss. 83, 84. (e) Stat. 12 & 13 Vict. o. 106, s. 104. (/■) Stats. 12 A 13 Vict. c. 106, s. 233 ; 17 :) The estate and eifects of the bankrupt, being thus vested in his assignees, are sold, got in, and converted into money by them for the benefit of the creditors. But it is now provided that, if it shall appear at any meeting of the creditors summoned by the assignees by notice, stating the object of the meeting, and at which three-fourths in value of the creditors shall be present or represented, that the debts of any bankrupt can be discharged (0 Stat. 12 i 13 Vict. c. 106, s. 133. (x) Sect. 134. (/() Sect. 133. OF BANKRUPTCY OF TRADERS. 235 by means of money raised by way of *mortgage or pledge r^-,^o-| of any of bis property, and sucb meeting sball pass a res- obition accordingly, tbe assignees may, wben tbereunto autbor- ized by order of tbe court, execute sucb mortgage or pledge witb or witbout powers of sale, and otber powers, and in sucb manner in all respects as sball be specified in sucb order.(^) And it is furtber provided tbat, at any time after tbe expiration of twelve montbs from adjudication, or at any earlier period witb tbe ap- probation of tbe court, tbe assignees may sell by auction or tender, or witb tbe sanction of tbe court by private contract, all or any of tbe book-debts due or growing due to tbe bankrupt, and tbe books relating tbereto, and tbe goodwill of bis trade or business, and assign tbe same to tbe purcbaser; and sucb pur- cbaser sball by virtue of tbe assignment bave power to sue in bis own name for tbe debts assigned to bim as effectually, and witb tbe same privileges concerning proof of tbe requisites of bank- ruptcy and otber matters as tbe assignee bimself.(2) At tbe expiration of four montbs from tbe date of tbe adjudi- cation of bankruptcy, or as mucb earlier as tbe court sball ap- point, a meeting of tbe creditors is beld before tbe registrar, at wbicb tbe creditors' assio;'nee submits a statement as to tbe bank- rupt's property, whicb statement it is tbe duty of tbe official assignee to examine, and a dividend is tben resolved on; and at tbe same time, tbe majority in value of tbe creditors present determine wbetber any and wbat allowance sball be made to tbe bankrupt out of bis estate, if be bas obtained or sball obtain bis discbarge. (a) In tbe payment of dividends no preference is given on account of tbe nature of tbe debt, wbetber judgment *debt, bond debt, specialty, or- simple cpntract. In this r^-,^_,-| respect tbe Court of Cbaucery, to wbicb tbe jurisdiction '- in bankruptcy anciently belonged, and wbicb now exercises an appellate jurisdiction, (6) followed its rule tbat equality is equity. And if any trader, in contemplation of bankruptcy,(c) sbould vol- (y) Stat. 24 & 25 Vict. e. 134, s. 133. (2) Stat. 24 & 25 Vict. c. 134, s. 137 ; Shipley v. Marsshall, 14 C. B., N. S. 506, E. C. L. R. vol. 108. (a) Stat. 24 & 25 Vict. c. 134, s. 174. (/j) StatB. 12 & 13 Vict. c. 106, s. 12 ; 24 ?) And at the first meeting or at any other meeting of creditors to be called for the purpose, and of which ten days' notice shall have been given in the London Gazette, three-fourths in number and value of the creditors present or represented at such meeting may resolve that the estate ought to be wound up under a deed of arrange- ment, composition, or otherwise.(7?) And if the court, on due hearing, shall find that such resolution was duly carried, and that its terms are reasonable and calculated to benefit the general body of the creditors under the estate, it shall confirm the same and make order accordingly, and in such order shall give such direc- tions as to the interim management of the estate as it shall deem expedient.(o) A deed of arrangement may then be signed by or on behalf of three-fourths in number and value of all the creditors of the bankrupt ; and if the court shall be satisfied that the deed has been duly entered into and executed, and that its terms are reasonable and calculated to benefit *the general body of r*-i^^-| the creditors, it may, by order, make a declaration of the complete execution of the deed, and may direct the same to be registered with the chief registrar, and may also, if it thinks fit, annul the bankruptcy; and such deed shall thereafter be as bind- ing in all respects on any creditor who has not executed the deed, as if he had executed it; provided such deed be registered with the chief registrar in the manner directed by the order.(2^) If the bankrupt had duly surrendered and conformed to the bankrupt law, he was formerly entitled to a certificate of con- formity, by which he was discharged from all debts due by him when he became bankrupt, and from all claims and demands made provable under the bankruptcy. (g') Formerly the certificate was required to be signed by a given proportion of the creditors ;{r) but, by the Act of 1849, the court was constituted the sole judge of any objections which might be made by any creditors against allowing the certificate ; and the court might either allow the same or refuse or suspend the allowance thereof, or annex such con- ditions thereto as the justice of the case might require.(6') Tlie (m) Stat. 24 & 25 Vict. c. 134, s. 110. {>/) Stat. 12 & 13 Vict. c. 106, ss. 199, 200. (n) Sect. 185. • (') Stat. 6 Geo. IV, c. 16, s. 122. (o) Sect. 186. (•') Stat. 12 & 13 Vict. c. 106, 8. 198. (p) Stat. 24 & 25 Vict. c. 134, 3. 187. 238 OF CHOSES IN ACTION. certificates were by this act divided into three classes. If the bankrui)tcy had arisen from unavoidable losses and misfortunes, the bankrupt was entitled to a certiiicate of the first class. If the bankru[>tcv had not u-holhi arisen from unavoidable losses and misfortunes, he was entitled to a certificate of the second class. And if the bankruptcy had not arisen from unavoidable losses or misfortunes, he was only entitled to a certificate of the third class.(/) But all classification of certificates is now abolished ;(i^) and *the bankrupt, if he has properly conducted himself, L Ms entitled to an order of discharge, which will discharge him from all debts, claims, or demands, provable under his bank- ruptcy.(x) All contracts or securities to induce any creditor to forbear opposition to the order of discharge, or to forbear to pe- tition for a rehearing of or to appeal against the same, are void; but no such security, if a negotiable security, shall be void as against a bona Jide holder thereof for value without notice of the consideration for which it M'^as given. (?/) Until the bankrupt obtains his discharge all the real and per- sonal property which may descend, revert, or be devised or be- queathed or come to him, becomes vested in his assignees. (2) But an -uncertificated bankrupt might maintain an action for his personal labor performed after the bankruptcy,(a) and he might also sue in respect of contracts made with himself, and also in re- spect of any after-acquired property, if the assignees or creditors did not interfere.(6) The court, however, is now empowered in certain cases of misconduct, either to refuse or suspend the order of discharge, or to grant the same subject to any conditions touch- ing any salary, pay, emoluments, profits, wages, earnings, or income, which may afterwards become due to the bankrupt, and touching his after-acquired property. (c) All the proceedings in bankruptcy are entered of record in the Court of Bankruptcy ;(cZ) and every proceeding or order in bank- (0 Stat. 12 & 13 Vict. c. 106, sched. Z. {y) Sect. 166. {a) Stat. 24 & 25 Vict. c. 134, s. 157. (2) Stat. 12 & 13 Vict. c. 106, ss. 141, 142. (.r) Stat. 24 k 25 Vict. c. 1.34. s. 161. {a) Silk v. Osborn, 1 Esp. R. 140. {!,) Webb V. Fox, 7 T. Rep. 391 ; Drayton v. Dale, 2 Barn. & Cress. 293, E. C. L. R. vol. 9 , Cioftnn V. Poole, 1 Barn. & Add. 568, E. C. L. R. vol. 20. (r) Stat. 24 & 25 Vict. c. 134, s. 159. (,'!) Stat. 12 & 13 Vict. c. 106, s. 6. OF BANKRUPTCY OF NON-TRADERS. 239 ruptcy appearing to be sealed *with tlie seal of any court r^-^^n-, having jurisdiction in bankruptcy, or any writing pur- porting to be a copy of any such document, and purporting to be so sealed, is at all times, and on behalf of all persons, to be admit- ted into all courts whatever as evidence of such documents respec- tively, and of such proceedings and orders having respectively taken place or been made, and to be deemed respectively records of such court, without any further proof thereof.(e) And all courts, judges, justices, and other officers, are bound to take judicial no- tice of the signature of any commissioner or registrar of the courts and of the seal of the courts, subscribed or attached to any judi- cial or official proceeding or document, to be made or signed under the provisions of the bankrupt act.(/) *CHAPTER V. [*149] OF BANKRUPTCY OF NON-TRADERS. Before the Bankruptcy Act, 1861, a person not in trade could not be made a bankrupt. He might, however, have become insol- vent. Insolvency, strictly speaking, means a general inability to meet pecuniary engagements. (a) But the term was very com- monly and conveniently applied to the means of getting rid of such engagements afforded by certain acts of Parliament passed for the relief of insolvent debtors.^ («) Stat. 24 & 25 Vict. c. 134, s. 203. (/) Sect. 204. (a) Biddlecombe v. Bond, 4 Adol. & Ell. 332, E. C. L. R. vol. 31. 1 The laws and regulation.? on the subject culiar system and practice of each State, are of insolvency.are almost as diverse as thereare doubtless of interest to the citizens of the re- States in the Union. To give a sketch of all spective States ; but it can scarcely be ex- these laws, and the judicial constructions of pected, and it certainly would not be advan- them, would far e.xceed the limits of a note, tageous, to collect together these diversities, The decisions as to what is a valid prefer- numerous as they are, and depending as they ence made by a debtor in favor of a creditor, do almost entirely upon an interpretation of and what an invalid one, — as to what is a the statutes of the several States for such a good assignment for the benefit of creditors, collection could result in nothing but con- and what bad, — together with the many other fusion. The in.soIvent law of each State, is questions of a like nature, relating to the pe- regulated by the acts of the legislature and 240 OF CHOSES IN ACTION, The principal act for the relief of insolvent debtors in England was the statute 1 & 2 Vict. c. 110, the former sections of which judicial opinions of Ihat State, and will be conclusive upon all its citizens, unless there be a conflict between the laws of a State and those of the Genera! Government; Gris- wold V. Piatt, 9 Metcf. R. 16; Betts «. Bag- ley, 12 Pick. R. 580 ; Alexander v. Gibson, 1 N. & McC. R. 483 ; Clark, Assignee. Ac, v. Rosenda et al., 5 Robins. R. 27. It is only, therefore, those questions which are of general interest, that will be here considered. By the term '-insolvent law,*' as generally received, is understood a law operating upon the remedy of a contract, and not upon the contract itself; discharging, indeed, the debtor from imprisonment, but not releasing his future acquisitions of property from the paj'ment of his debt ; while under the words "bankrupt law," is comprehended all those enactments, which discharge the debtor from liabilitj' upon his contract. That this dis- tinction between bankrupt and insolvent laws, though ordinarily received as true, cannot be entirely relied on, may be seen from the opinion of Chief Justice Marshall, in the case of Sturges v. Crowninshield, 4 Wheat. R. 194 : " It is said . . . that laws which merely liberate the person are insolvent laws, and those which discharge the. contract, are bank- rupt laws. But if an act of Congress should discharge the person of a bankrupt, and leave his future acquisitions liable to his creditors, we should feel much hesitation in saying that this was an insolvent, not a bank- rupt act ; and, therefore, unconstitutional. Another distinction has been stated, and has been uniformly observed. Insolvent laws operate at the instance of an imprisoned debtor ; bankrupt laws at the instance of a creditor. But should an act of Congress authorize a commission of bankruptcy to issue on the application of a debtor, a court would scarcely be warranted in saying that the law was unconstitutional, and the com- mission a nullity." Notwithstanding this decision, the district judge of Missouri, in Nelson v. Garland, pronounced the act of Congress of 1841, authorizing a debtor to be declared a bankrupt upon his own petition, a mere insolvent law; but, upon a certificate of difference of opinion between the judges of the Circuit and District Courts, the Supreme Court declared, that, unc'er the circumstances of that case, the act did not give a power of review, and that the decision of the district judge must be regarded as final ; 1 How. R. 269. This diflSculty of distingui.^hing be- tween bankrupt and insolvent laws, has, per- haps, in part, caused that diversity of opinion which has led to the holding, in some cases, that the States not only have power to pass insolvent laws, but also bankrupt laws; Og- den V. Saunders, 12 AVheat. R. 213 ; WoodhuU et al. V. Wagner, 1 Baldw. R. 296 ; Shaw v. Robins, 12 Wheat. R. 369 ; Mason v. Haile, Id. 370 ; Beers et al. v. Haughton, 9 Pet. R. 330 ; Hempstead v. Reed, 6 Conn. R. 480 ; Norton v. Cook, 9 Id. 314; Blair, &c., v. Williams, 4 Litt. R. 35 ; Bronson v. New- berry, 2 Doug. R. 38 ; Brown v. Dillahunty et al., 4 Smed. & Mar. R. 725 ; Gray et al. V. Monroe et al., 1 McLean's R. 528 ; Roose- velt V. Cebra, 17 Johns. R. 108; Post v. Riley, 18 Id. 54 ; Penniman v. Meigs, 9 Id. 325 ; Ex parte Ziegenfuss, 2 Ired. L. R. 467 ; Smith V. Parsons, 1 0. R. 236 ; Alexander v. Gibson, 1 Nott. & McC. R. 483; while, on the contrary, other authorities maintain that the State legislatures have no power to pass bankrupt laws ; McMillan v. McNeill, 4 Wheat. R. 209 ; Golden v. Price, 3 Wash. C. C. R. 313 ; Farmers' and Mechanics' Bank of Pennsylvania v. Smith, 6 Wheat. R. 131 ; Glenn v. Humphreys, 4 Wash. C. C. R. 424; Medbury v. Hopkins, 3 Conn. R. 472 ; Bal- lentine et al. v. Haight, 1 Ilarring. R. 197; Olden et al., Exrs., v. Hallet, 2 South. R. 466. All the cases, however, agree, that the State governments have no power to make a law impairing the obligation of a contract, and the only question of dispute between them has been, whether a State bankrupt law impairs the obligation of a contract ; some holding that it does, because we understand by a bankrupt law one which absolutely dis- charges the debt ; and others, admitting the definition of a bankrupt law, deny that it impairs the contract, if the bankrupt law was in existence at the time when the con- tract was made, because the contract was then made in subserviency to existing laws. As OF BANKRUPTCY OF NON-TRADERS. 241 are, however, occupied in abolishing arrest on mesne process in civil actions, and in extending the remedies of judgment creditors to insolvent laws, it has been determined that is inconsistent with the partial acts of the inasmuch as they, according to the ordinary States." See also Baldwin v. Hale, 1 Wal- acceptation of the term, operate merely upon lace's U. S. R. 22S. the remedy, and not upon the contract itself, It being settled, then, that the States have thev cannot be said to impair the obligation power to make insolvent laws, another very of contracts, and are consequently valid, interesting question arises, as to the extent The effect of a discharge under the insolvent of the jurisdiction of those laws ; and this has law of a State, may be regarded as at rest, so occasioned considerable diversity of senti- far as regards the decisions of the courts of ment. Although, for general purposes, the the United States; Boyle v. Zacharie et al., people of this country are one, yet, in all C Pet. R. 6.35. That other question, also, in other respects, the States are necessarily for- respect to the clashing of the authority of the eign and independent of each other ; Buckner State and General Government, may be con- v. Finley et al., 2 Pet. R. 586; Emory v. sidered determined, for in the words of Chief Greenough, .3 Dal. R 369 ; and consequently Justice Marshall, in the case of Sturges v. it is to be expected, that as in the interpreta- Crowninshield, above referred to: "This dif- tion of foreign contracts, the lex loci contrac- ficulty of discriminating with any accuracy Uis will be regarded ; Smith v. Mead, 3 Conn, between insolvent and bankrupt laws, would R. 253; Hammett v. Anderson, Id. 304; lead to the opinion that a bankrupt law may while, in the execution of the contract, the contain those regulations which are generally lex fori will prevail ; White v. Canfield, 7 found in insolvent laws, and that an insolvent Johns. R. 117; Whittemore v. Adams, 2 law may contain those which are common to Cow. R. 626 ; Lowden et al. v. Moses, 3 McC. a bankrupt law. If this be correct, it is ob- R. 93 ; Ayres et al. v. Audibon, 2 Hill's (S. vious that much inconvenience would result C.) R. 601. In accordance with this, we find from that construction of the Constitution, that a contract made in one State, is not af- which would deny to the State legislature the fected by the discharge of the debtor under power of acting on this subject, inconsequence the insolvent law of another State; Cook v. of the grant to Congress. It may be thought Moffat et al., 5 How. R. 295 ; Smith v. Mead, more convenient that much of it should be 3 Conn. R. 253 ; Hammett v. Anderson, Id. regulated by State legislation, and Congress 304; Fisher et al. v. Wheeler et al., 5 La. may purposely omit to provide for many cases An. R. 271 ; Judd v. Porter, 7 Maine R. 337 ; to which their power extends. It does not Palmer v. Goodwin, 32 Id. 535 ; Larrabee v. appear to be a violent construction of the Talbott, Ac, 5 Gill's R. 426 ; Glenn v. Gill, Constitution, and is certainly a convenient 2 Md. R. 18 ; Owens et al. t^. Bowie et al., &c., one, to consider the power of the States as existing over such cases, as the law of the Union may not reach. But be this as it may, the power granted to Congress may be ex- ercised or declined, as the wisdom of that Id. 457 ; Van Raugh v. Van Arsdale, 3 N. Y. T. R. 154 ; Van Hook v. Whittock, 26 Wend. R. 53; Hicks v. Hotchkiss et al., 7 Johns. Ch. R. 297 ; Wyman v. Mitchell, 1 Cow. R. 316 ; Bizziel v. Bedient, 2 Car. L. Repos. body shall decide. If, in the opinion of Con- 254; McKim r. Willis, 1 Allen's R. 512; gress, uniform laws concerning bankruptcies Kendall v. Badger, 1 McCal. C. C. R. 263 ; ought not to be established, it does not fol- Beer v. Hooper, 32 Missi. R. 246 ; Dinsmore low that partial laws may not exist, or that v. Bradley, 5 Gray's R. 487 ; Anderson v. State legislation on the subject may cease. Wheeler, 25 Conn. R. 603 ; and that a dis- It is not the mere existence of the power, charge from imprisonment in one State, can- but its exercise, which is incompatible with not be of any avail in an action brought in the exercise of the same power by the States, the courts of the United States, or the courts It is not the right to establish these uniform of any other State than that where the dis- laws, but their actual establishment, which charge was obtained ; Ogden v. Saunders, 12 16 242 OF CHOSES IN ACTION. against the property of tlieir debtors. So far as the act related to insolvent debtors, it was for the most part, a reprint, with some Wheat. R. 213; Clay v. Smith, 3 Pet. R. 411 ; United States v. Wilson, 8 Wheat. R. 253 ; Woodhull et al. v. Wagner, 1 BaUlw. R. 296 ; Shaw v. Robbing, 12 Wheat. R. 369 ; Glenn v. Humphreys, 4 Wash. C. C. R. 424 ; Babcock «. Weston, 1 Gallis. R. 168; Hinkley V. Mareau, 3 Mason's R. 88 ; Beers v. Haugh- ton, 9 Pet. R. 330 ; Suydam et al. v Broad- nax et al., Adnirs., 14 Id. 67 ; King v. Rid- dle, 7 Cranch's R. 168 ; Woodbridge v. Wright et al., 3 Conn. R. 523 ; Norton v. Cook, 9 Id. 314 ; Watson v. Browne, 10 Mass. R. 337 ; Frey v. Kirk, 4 Gill & Johns. R. 509 ; Friske v. Foster, 10 Mete. R. 597 ; Ilsley V. Merriam, 7 Id. 242 ; Clark v. Hatch, Id. 455 ; Wool et al. v. Malin, 5 Halst. R. 208 ; Vanuxem et al. v. Hazlehursts, 1 South. R. 202; Smith, Admr., v. Smith, 2 Johns. R. 235 ; White v. Canfield, 7 Id. 117 ; Sicard v. Whale, 11 Id. 194 ; Mather et al. v. Bush, 16 Id. 233 ; Whittemore v. Adams, 2 Cow. R. 626 ; Peck v. Hozier et al., 11 Johns. R. 346 ; James et al. v. Allen, 1 Dal. R. 206 ; Ayres et al. «. Audibon, 2 Hill's (S. C.) R. 601; Baldwin v. Hale, 1 Wallace's U. S. R. 223 ; in which last case it was decided, that a dis- charge obtained under the insolvent laws of one State, is not a bar to an action on a note given in and payable in the same State, the party to whom the note was given having been and being of a different State, and not having proved his debt against the defend- ant's estate in insolvency, nor in any manner been a party to those proceedings. And see Poe V. Duck. 5 Md. R. 1 ; Fessenden v. Wil- ley, 2 Allen's (Mass.) R. 67. Some cases, however, have held, that if the discharge has been granted by the State in which the con- tract was made, it will remain good even against a resident of another State ; Blanch- ard V. Russell, 13 Mass. R. 1 ; Proctor v. Moore, 1 Id. 198 ; Braynard v. Marshall, 8 Pick. R. 194; Savoye et al. v. Marsh et al., 10 Id. 594 ; Pugh v. Bussel, 2 Blackf. R. 394 ; Scribner v. Fisher, 2 Gray's R. 43 ; Hough- ton V. Maynard, 5 Gray's R. 552. As a gene- ral rule, the State laws prohibiting assign- ments of property, by a failing debtor, in an- ticipation of insolvency, to preferred credi- tors, will not be regarded in another or sister State, where a creditor of the insolvent re sides, and to whom such assignment has been made ; Upton v. Hubbard, 28 Conn. R. 274 ; Mead v. Dayton, Id. 33 ; Hoyt v. Shelden, 3 Bosw. R. 267. But there is a class of cnses, which would at first sight seem to be inconsistent with the decisions above quoted ; thus, a discharge obtained in Maryland, or Pennsylvania, or New York, has been held good in Delaware ; Lewis V. Norwood, 4 Ilarring. R. 460 j Fish- er V. Stayton, 3 Id. 271 ; Beeson v. Beeson's Admrs., 1 Id. 466; Bailey v. Seal's Special Bail, Id. 367 ; so, also, a discharge obtained in Pennsylvania, has been held good in New Jersey ; Rowland etal. v. Stevenson, 1 Halst. R. 149 ; and in the same State, a discharge obtained in New York, upon a contract made in Pennsylvania, has been held good ; Hale V. Ross, Penning. R. 590 ; and a discharge obtained in Massachusetts, has been pro- nounced valid in Pennsylvania ; Wheelockv. Leonard, 20 Pa. St. R. 440 , and a discharge obtained in Massachusetts, upon a contract made there, with citizens of New York, has been held good in New Hampshire ; Brown V. Collins, 41 N. H. R. 405 ; but a debt con- tracted in Massachusetts, between citizens of that State, which was evidenced by note, and indorsed to a citizen of New Hampshire, can be collected by the holder by suit in the State of New York, notwithstanding the discharge of the maker by the insolvent laws of Massa- chusetts ; Smith v. Gardner, 4 Bosw. R. 54 ; and see further for analogous cases ; Hemp- stead V. Reed, 6 Conn. R. 480 ; Hicks v. Brown, 12 Johns. R. 142; Hare, Exr., v. Monetrie, 2 Yeat. R. 435 ; Donaldson v. Chambers, 2 Dal. R. 100 ; Miller v. Hall, 1 Id. 229 ; Thompson v. Young, Id. 294. This inconsistency, however, proceeds from a comity between the different States, by which the same regard is paid by one State, to the insolvent laws of a sister State, as that State would pay to the insolvent laws of the former State, as will be seen by a reference to Walsh V. Nourse, 5 Bin. R. 381, where Chief Jus- tice Tilghman says : "If this matter is con- sidered on pri7tciplc, it is not easy to discover by what authority any State, can by its laws, OF BANKRUPTCY OF NON-TRADERS. 243 important additions, of a previous statute for the same purpose,(6) by which the laws then existing on the subject were amended and consolidated. The relief afforded to the debtor was his dis- charge from prison ; and the act accordingly only applied to persons in actual custody within the walls of a prison in England. Any such person in custody upon any process whatsoever, for or by reason of any debt, damages, costs, sum or sums of monej^, or in consequence of contempt of any *court whatsoever for non-payment of money or costs, taxed or untaxed, might at any time within the space of fourteen days next after the com- mencement of his actual custody, or afterwards by permission of the court, apply by petition to the Court for the Relief of Insolv- ent Debtors for his discharge from such custody, according to the provisions of the act.(c) In the country the petitiou was referred for hearing to the county court of the district within which the insolvent was in custody.((/) The insolvent himself w^as formerly the only person who could put the machinery of the act in motion ; but afterwards the creditor at whose suit the prisoner w^as com- mitted to prison or charged in execution might, if not satisfied within twenty-one days next after such prisoner should have been so committed or charged in execution, himself petition the court for his share of the relief,(e) which consisted in the real and per- sonal estates and effects of the prisoner being vested in the provi- sional assignee of the court for the benefit of his creditors. (b) Stat. 7 Geo. IV, c. 57, continued and amended by stat. 11 Geo. IV, & 1 Will. IV, c. 38. (c) Stat. 1 & 2 Vict. c. 110, s. .35. {d) Stat. 10 & 11 Vict. c. 102, s. 10. (e) Sect. 36. In this case, however, the Insolvent Court had no adequate means of com- pelling the prisoner to file a schedule of his property ; Hollis v. Bryant, 12 Sim. 492, 501. affect a debt contracted in another State, regard to the insolvent laws of our sister where the creditor is re.siding. I mean how States, which their courts pay to ours. If the it can affect a debt so as to prevent the credi- matter were to be taken up anew, I should tor from bringing an action in another State, be for adhering to what I consider the true Every State has power over the persons resid- principle. But not without considerable re- ing within its territory, and therefore where luctance, I have thought myself bound by a debt is discharged by the law of a State, in former decisions, as I have declared in the which both plaintiff and defendant re.side, case of Boggs and Davidson v. Teacklo," &o. : another State ought to pay regard to it. He- and see also, Mount v. Bradford, 1 Miles's R. peated decisions by my predecessors in this 17; Fisher v. Hyde, 3 Yeat. 11. 25(1; Smith Court, have placed the law on a footing some- «. Brown, 3 Bin. R. 201; Boggs et al. v what different from the principle I have men- Teackle, 5 Id. 332 ; Ililliard et al. v. Green- tioned. Our rule has been to jiay the same leaf. Id. 330, and note. 244 OF CIIOSES IN ACTION. On the filing of tlie petition either of the debtor or of the cred- itor, a vesting order, as it was termed, was made l)y tlie conrt. By this order all the real and personal estate and effects of the prisoner, both within this realm and abroad (except his wearing apparel, bedding, and other such necessaries of himself and his family, and his working tools and implements, not exceeding in the whole the value of twenty pounds), and all the future estate to which he might become entitled until his final discharge, were vested in the provisional assignee for the time being of the estates [-^^^^-, and etfects of insolvent *debtors in England. (/) The •- -^ court might susequently have appointed any proper person or persons to be assignees of such estate and etiects, in whom the same accordingly vested on the acceptance of the appointment being signified by him or them to the court.(//) The estate and effects of the prisoner were then sold and converted into money by the assignees in the manner directed by the act. (A) And the court had power to order that any property of the prisoner might be mortgaged, instead of being sold, if it shonld appear to the court that his debts could be discharged by such means, (z) If the insolvent were a beneficed clergyman, the assignees might have obtained a sequestration of the profits of the benefice for the pay- ment of his debts.(A') And if the insolvent were or had been an otficer under government, or in the service of the East India Com- pany, a portion of his pa}^ half pay, salary, emoluments, or pension might, with the written consent of the chief officer of the depart- ment to which he belonged or had belonged, be ordered to be paid to the assignees. (^ The produce of the insolvent's estate was then divided by the assignees ratably amongst the creditor8,(?)?) and if any prisoner should before or after his imprisonment, being in insolvent circumstances, have voluntarily conveyed, charged or made over any of his estate to or in trust for any creditor or creditors, every such transaction was declared to be fraudulent and void as against the assignees, if made within three months (/■) Stat. I & 2 Vict. c. 110, s. 37; Ford v. Dabbs, 5 Man. & Gr. 309, E. C. L. H, v (g) Stat. 1 & 2 Vict. c. 110, s. 45. (h) Sect. 47. See Wright v. Maunder, 4 Beav. 512. (i) Sect. 48. {k) Sect. 55. See Stat. 12 & 13 Vict. c. G7. (/) Stat. 1 & 2 Vict. c. 110, s. oG. (m) Sect. 62. ol. 44. OF BANKRUPTCY OF NON-TRADERS. 245 before the commencement of the party's imprisonment, *or with the view or intention on his part of petitioning the ^ -^ court for his discharge under the act{n) Within fourteen days next after the making of the vesting order, or within such further time as the court thought reasonable, a schedule was required to be delivered into the court, signed by the prisoner, containing a full description of his name, trade or profession, place of abode, debts and property of every descrip- tion. (o) Immediately after the filing of this schedule, a time and place were appointed by the court for the prisoner to be brought up to be dealt with according to the act,(^) of which due notice was given to the creditors.f^/) His schedule was then examined into on oath by the court; and any creditor might oppose his dis- charge, and for that purpose might put such questions to the prisoner and examine such witnesses as the court thought fit.(r) After such examination the court was then empowered, upon the prisoner swearing to the truth of his schedule, and executing the warrant of attorney to be mentioned afterwards, to adjudge that such prisoner should be discharged from custody, and entitled to the benefit of the act as to the several debts and sums of money meotioned in the schedule, due or claimed to be due, at the time of making the vesting order, from the prisoner to the persons named in his schedule, or for which such persons should have given him credit before the time of making such vesting order, and which were not then payable, and as to the claims of all other persons, not known to the prisoner at the time of the adjudication, who might have been indorsees or holders of any negotiable security set forth in the schedule. (.s) The discharge might have *been, in the discretion of the court, either immediate, or p^wro-i miglit have been postponed for six months ,(;!) and in cer- ^ -• tain cases of flagrant misconduct it might have been postponed for any period not exceeding three ycars.(?^) The insolvent being thus discharged was free from any future (m) 1 & 2 Vict. c. 110, s. 59. See Ilarrii' v. Lloyd, 6 Beav. 426 ; Jnckson v. Thompson, 2 Q. B. 887, E. C. L. R. vol. 42; ^ Man. & Gr. 621, E. C. L. R. vol. 42. (o) Sect. 69. {fj) Sect. 71. {p) Sect. 70. (r) Sect. 72. (j») Sect. 75. Leonard v. Baker, 15 Mee. & \Vel.s. 202. (<) Sect. 76. (m) Sects. 77, 78, 246 OF CHOSES IN ACTION. imprisonment, and his property was also free from execution, at the suit of his creditors, for the debts mentioned in the sched- ule.(a:) And the costs of actions and suit8,(?/) and the claims of annuity creditors, (^'j might have been comprised in such discharge. The discharge, however, was not like that of bankruptcy, final and complete ; for before any adjudication was made, the prisoner was recpiired to execute a warrant of attorney, authorizing the entering up of a judgment against him in one of the superior courts at Westminster, in the name of the assignee or assignees, for the amount of the prisoner's unsatisfied debts as stated in the schedule. And if at any time it should have appeared to the satisfaction of the court that the prisoner was of ability t^ pay such debts, or any part thereof, or that he was dead leaving assets for that purpose, the court might have permitted execution to be taken out upon the judgment for such sum as it might have ordered, such sum to be distributed ratably among the credi- tors. («) Under certain circumstances, an insolvent might, b}* other acts of Parliament, have obtained as complete a discharge from his r*i KAi ^^^*^ ^^ if ^^ ^^^*^ become *bankrupt.(6) The acts, how- ^ -^ ever, only applied to such persons as had become indebted without any fraud, or gross or culpable negligence. Accordingly, no person was allowed to take the benefit of such acts if his debts had been contracted by any manner of fraud or breach of trust, or any prosecution wherebj' he had been convicted of any ofl:ence, or without having, at the time of becoming indebted, a reasonable or probable expectation of being able to pay the debts ; or if such debts were contracted by reason of any judgment in any proceed- ing for breach of the revenue laws; or in any action for breach of promise of marriage, seduction, criminal conversation, libel, slander, assault, battery, malicious arrest, malicious suing out of a fiat in bankruptcy, or malicious trespass. (c) With these excep- tions, any person indebted, not being a trader within the bank- rupt laws, or being such trader, but owing debts amounting in (x) Sects. 90, 91. (y) Sect. 79. (2) Sect. 80. See Bennett v. Burton, 12 Ad. & Ell. 657, E. C. L. R. vol. 40. (a) Sect. 87. See, also, sects. 88 and 89. See Ilawkes v. Halliwell, 2 Sma. & Giff. 498. (b) Stats. 5 & 6 Vict. c. 116 ; 7 & 8 Vict. c. 96 ; 10 & 11 Vict. c. 102. (c) Stat. 5 4 6 Vict. c. 116, s. 4 ; 7 & 8 Vict. o. 96, s. 24. OF BANKRUPTCY OF NON-TRADERS. 247 the whole to less than 300?., might, whether he should have already been in prison or not,(d) have applied for the protection of his person from process, on making a fall disclosure and surrender of all his estate and effects for the payment of his debts. The ap- plication was made to the Court for the Relief of Insolvent Debtors.(e) But if the petitioner should not have resided for the last six calendar months within twenty miles of London, but should have resided for that time within the district of a county court, application must then have been made to such county court.(/) The whole estate and effects of the insolvent were then vested in the provisional assignee of the Insolvent Court, or in the clerk of the county court, as the case might be, for the benefit *of all the creditors ratably.(/7) But the wearing r--^-.rr-, apparel, &c., of the petitioner and his family, not exceed- '- -' ing the value of 20L, might have been excepted, as in the other Insolvent Act, provided such excepted articles, and the values thereof, were fully and truly described.(A) With the exception of the warrant of attorney given by the prisoner under the other Insolvent Act, the provisions of these acts were generally* similar to those of that act. The filing of every petition under these acts was required to be registered in the registry for judgments of the county courts.(() In the reign of George III an act was passed for the discharge of debtors in execution upon any judgment for any debt or dam- ages not exceeding 201. , exclusive of costs. (^) But, as it is now provided that no person shall be taken or charged in execution upon any judgment in any action for the recovery of any debt, wherein the sura recovered shall not exceed 20/., exclusive of costs,(/) this act may now be considered as almost obsolete. Since the Bankruptcy Act, 1861, (m) a complete change has been made in the law with respect to the insolvency of persons not in trade. That act repeals all the above-mentioned acts for id) Stats. 7 & 8 Vict. c. 96, s. 6 ; 10 & 11 Vict. c. 102, s. 7. (e) Stat. 10 A 11 Vict. c. 102, ss. 6, 8. (/) Ibid. 8. 6. (§■) Stats. 5 & 6 Vict. c. 116, s. 7 ; 10 & 11 Vict. c. 102, s. 5. (A) Stat. 7 & 8 Vict. c. 96, s. 9. (t) Stat. 17 & 18 Vict. c. 16, s. 2. See a>ile, p. 100. (/.) Stat. 48 Geo. Ill, c. 12.3. See Tol.son v. Dyke.s, 1 Phillips, 4.39. (0 Stat. 7 & 8 Vict. c. 96, s. 57. (wt) Stat. 24 & 25 Vict. c. \U. 248 OF CHOStS IN ACTION. the relief of insolvent debtors, and abolishes the court for their relief.(>^) All persons, whether traders or not, are now subject to the bankrupt law ;(o) but no person is to be adjudged a bankrupt, except in respect of some one of the acts of *bankruptcy L *-' described in the act as applicable to a non-trader.(p) The following acts committed by non-traders are acts of bank- ruptcy. If any person, not being a trader, shall, with intent to defeat or delay his creditors, depart this realm, or being out of this realm shall with such intent remain abroad, or shall with sticli intent make any fraudulent conveyance, gift, delivery, or transfer of his real or personal estate, or any part thereof respec- tively, such person shall be deemed to have thereby committed an act of bankruptcy : provided always, that before any adjudi- cation in bankruptcy shall be made against the debtor, under this section, the following rules shall be observed: 1. A copy of the petition for adjudication shall be served per- sonally on the debtor, either within the jurisdiction, or in such place or country, or within such limits abroad, as the court shall, upon application for that purpose, direct: 2. Such copy of petition shall have indorsed thereon a memoran- dum, in a form settled by a general order, specifying the time within which the debtor is to appear on such petition; and such time shall, when the service is to be made abroad, be the time which the court shall think reasonable, having regard to the place or country where the service is to be made : 3. In no case shall the time for appearance be less than thirty days after service : 4. If such personal service has not been eifected, the court must be satisfied that every reasonable eftbrt was made to effect the same, and that the *attempt8 to serve L ^ ' J such petition came to the knowledge of the debtor, and were defeated by his conduct : 5. If at the expiration of the time limited for appearance the court shall, on the hearing of such petition, be satisfied (7i) Sects. 19-27. (p) Stat. 24 & 25 Vict. c. 134, s. 69. (o) Sect. 69. OF BANKRUPTCY OF NON-TRADERS. 249 that an act of bankruptcy has been committed within the meaning of this section, it may adjudge such debtor to be a bankrupt. It is also an act of bankruptcy for a non-trader to lie in prison for debt for two calendar months, fourteen days only being suf- ficient for a trader, (g) Escape out of custody for debt is also an act of bankruptcy. (r) A declaration of insolvency is also an act of bankruptcy whether the insolvent be a trader or not.(5) And so is his insolvency or bankruptcy in any of the colonies.(^) A non-trader may also commit an act of bankruptcy by non-pay- ment of a judgment debtor summons; but one calendar month must elapse from the signing^ of judgment, instead of a week only as in the case of a trader. (i<) And in the case of any order of equity, bankruptcy, insolvency, or lunacy, for payment of money, two calendar mouths are allowed to a non-trader after service on him of the peremptory order, instead of seven days as in the case of a trader.(x) " The Bankruptcy Act, 1861," contains provisions for the dis- charge from prison of pauper and lunatic prisoners for debt. These provisions apply both to traders and non-traders. (?/) This act also contains provisions for the payment of a portion of the pay, half-pay, salary, *emolument, or pension of any bankrupt to his assignees if sanctioned by the chief offi- cer of the department to which he may belong or may have be- longed ;(^) also for the sequestration of the profits of the benefice of any bankrupt who is a beneficed clergyman. (a) After the adjudication of bankruptcy has taken place, the pro- ceedings are now the same, w^hether the bankrupt may have been a trader or not. (?) Stat. 24 & 25 Vict. c. 134, s. 71 ; atite, p. 126. (r) Ante, p. 126. (x) Seot. 77; ante, p. 129. (s) Sect. 72. (y) Sects. 98-107. (t) Sect. 75, avte., p. 128. (z) Stat. 24 & 25 Vict. o. 134, s. 134. (?0 Sect. 76 ; ante, p. 128. (a) Sect. 135. 250 OF CIIOSES IN ACTION. [*159] *CIIAPTER VI. OF INSURANCE. Having now considered, though very briefly, the subject of debts generally, there remain certain debts, payable on contin-, gencics, which deserve a separate notice, namel3', debts arising under contracts to insure, efiected by policies of insurance. A policy of insurance, or assurance,- is the name given to an instru- ment by which a contract to insure is entered into; and a con- tract to insure is a contract either to indemnify against a loss which may arise on the happening of some event, or to pay, on the happening of some event, a sum of money to the person insured.* The most usual kinds of insurance are, insurance of lives, insurance against loss by fire, and insurance of shij^s and their cargoes against the perils of the seas. 1 Insurance is a contract, whereby for a other, that he shall not suffer loss, damage, or stipulated consideration, one party under- prejudice, by the happening of the perils takes to indemnify the other against certain specified, to certain things which may be ex- risks. Marine insurance is a contract, where- posed to them ;" 5 Bos. & Pul. R. 301, Law- by for a consideration stipulated to l)e paid rence, J. by one interested in a ship, freight, or cargo, Insurance may be defined, a contract, by subject to the risks of marine navigation, an- which, in consideration of a certain sum, one other undertakes to indemnify him, against party agrees to indemnify another, against some or all of those risks, during a certain pe- risks incurred in a certain manner, during a riod or voyage. The other species of insur- stipulated period ; 48 Law Mag. 251. ance most in use, are those against loss by The written instrument in which the con- fire on land, and loss of life ; 1 Phill. on tract of marine insurance is embodied, is Ins. 1. called a, policy of insurance. It is a printed Mr. Justice Lawrence says : " The con- or written contract, in which the premium, tract of insurance is applicable to protect the risk insured against, the names of the un- men against uncertain events, which may derwriters, and the sum insured, are to be in- in anywise be of disadvantage to them ;" 5 serted ; 1 Arnould on Ins. 16. Policy, is the B. & P. R. 301, Lueena v. Crawford. See, name given to the instrument, by which the for sundry definitions of insurance, Mr. contract of indemnity is effected between the Sergt. Coleridge's argument in Patterson v. insurer and insured ; and it is not, like most Powell, 9 Bing. R. 320 ; 1 Phill. on Ins., p. contracts, signed by both parties, but only by 1, n. (a). the insurer, who, on that account, it is sup- " Insurance is a contract, by which the one posed, is denominated an underwriter ; Park party, in consideration of a price paid to him on Ins. 1. adequate to the risk, becomes security to the OF INSURANCE. 251 And first, as to life insurance.^ The advantages of life insur- ance are now so well known, that there is no occasion to dilate upon them. By payment of a small annual premium during the life insured, a sum of money may be secured at his decease, applicable to the payment of his debts, for a provision for his family, or any other purposes. But as the insurance of lives and other events, in which the person insured has no interest, is often nothing more than a mischievous kind of gaming, it is enacted, by an act of the 14th of George III, that no insurance shall be made on the life of any person, or on any other event whatsoever, wherein the person for whose use and benefit, or on whose account such policy shall be made, shall have no interest, or by way of gaming or wagering; and that *every such r^-,^^-, assurance shall be null or void, to all intents and purposes '- -" whatsoever ;(a) and that it shall not be lawful to make any policy on the life of any person, or other event, without inserting in the policy the person's name interested therein, or for whose use or benefit, or on whose account such policy is made;(6) and that in all cases where the insured hath an interest in such life or event, no greater sum shall be recovered or received from the insurer than the amount or value of the interest of the insured in such life or other event.(c-) But this act does not extend to insurances bond fide made on ships, goods, or merchandises,(c/) with respect to which provisions have been made by another act of Parlia- ment.(e) Every person is considered to have a sutficient interest («) Stat. 14 Geo. Ill, c. 48, s. 1. Shilling v. Accidental Death Insurance Company, 2 H. k N. 42. (h) Sect. 2. Hodson v. Observer Life Assurance Society, 8 E. & B. 40, E C. L. R. vol. 92. (c) Sect. 3. {d) Sect. 4. {r) Stat. 19 Geo. II, c. 37. ' Insurance upon life, is a contract, by " An insurance upon life is a contract, by which the insurers undertake, in considera- which the underwriter, for a certain sum, tion of a gross sum paid down, or, as is most proportioned to the age, health, profession, usual, of an annual payment, to pay the per- and other circumstances of the person whose son for whose benefit the insurance is effected, life is the object of insurance, engages that or the personal representatives of the insured, the person shall not die within the time lira- as the case may be, either a stipulated sum, ited in the policy ; or if he do, that he will or an annuity, upon the death of the party pay a sum of money to him in whose favor insured, whenever it may happen, if the in- the policy was granted ;" Angell on Fire and Burance be made for the whole term of life ; Life Insurance, p. 334. or, if the insurance be made for a limited Dal by v. The India and London Life A.s- period, in case the death of the insured surance Co., 28 Eng. L. & Eq. R. 312. happens within that period; Ellis on Ins. 97. 252 OF CHOSES IN ACTION. in the duration of his own life to sustain his own insurance of it; but if he sliould afterwards put an end to his life, or die by the sentence of the law, the insurance will be void in the hands of his executors; and no provision to the contrary contained in the policy of insurance will be of any avail. (/) The assignee of a person who has insured Ins own life is not required by the above- mentioned statute to have any interest in the life of such person, for the statute makes no mention of the assignment of policies.f*/) A creditor has an insurable interest in the life of his debtor to the extent of his debt; but if the debt should be discharged from any other source, it was formerly held that the policy would thenceforth be void for want of interest.(A) This strict law was r===i "n ^^*^^' bowever, usually taken advantage of by *the assurance -* offices, who generally paid the sums insured without any inquiry as to the extent of the interest of the party insured in the life on which the insurance had been effected.(i) And by recent decisions,(/i-) the doctrine that a contract for life assurance is a contract for indemnity only has been overruled; so that if the person insuring has an insurable interest at the time of effecting the policy, the subsequent loss of such interest will not render the policy void. An interest as trustee is sufficient to support a life insurance. (/) But a father has not such an interest in the life of his son as to warrant an insurance of it for his own benefit. (?>it)^ {f) Amicable Assurance Society v. Bolland, 4 Bligh, N. S. 194, reversing Bolland v. Disney, 3 Russ. 351 ; see Clift v. Schwabe, 3 C. B. 437, E. C. L. R. vol. 54. (§•) Ashley v. Ashley, 3 Sim. 149. (A) Godsnll V. Boldero, 9 East, 72; S. C. 2 Smith's Leading Cases, 157. {i) Lloyd & Goold, Cas. Temp. Sugden, 291. (/.) Dalby v. India and London Life Assurance Company, 15 C. B. 365, E. C. L. R. vol. 80 ; S. C. 18 Jur. 1024; Law v. London Indisputable Life Policy Company, 1 Kay & John. 223. (I) Tidswell v. Angerstein, Peake, N. P. Cases, 151; Collett v. Morrison, 9 Hare, 102, 176. (to) Halford v. Kymer, 10 Barn. & Cres. 724, E. C. L. R. vol. 21. 1 It is pretty well settled, that he who is to 268 ; Bevin v. The Com. Mutual Life Ins. reap the benefit of an insurance made upon Co., 23 Conn. R. 244. It has been decided the life of a person, must have some interest on this point, that a creditor has a sufficient in that life ; Valton v. National Loan Fund interest in the life of his debtor, to insure that Life Asso. Soc, 22 Barb. R. 9 ; Ruse v. Mu- life ; Morrell v. Trenton Mutual Life and F. tual Ins. Co., 23 N. Y. R. 516; but the in- Ins. Co., 10 Cush. R. 282 ; and that he may terest necessary is slight; Hoyt v. N. Y. le diligence ; The Fortitude, 3 Sumner R. 228. 260 OF ClIOSES IN ACTION. [*165] *CHAPTEE VII. OF ARBITRATION.' Instead of tlie ultimate remedy of an action at law or suit in equity, recourse is sometimes had for the settlement of disputes 1 The laws of all the States, contain pro- umpire subsequently, although it also allows visions on the subject of arbitration and ref- the parties, at discretion, to fix upon their erenee ; and in almost all of them, any per- umpire at the time the other arbitrators are sonal controversy, whether litigated or not, appointed. may be referred under a rule of court ; this The Pennsylvania systems of arbitration is the case in Alabama, Florida, Georgia, are peculiar, being in number no less than Kentucky, Louisiana, California, Michigan, • six, five of which are by agreement of the Missisippi, New Hampshire, New Jersey, parties, and the sixth at the pleasure of either, Ohio, Tennessee, Vermont, Virginia, and and commonly called the compulsory rule of Pennsylvania. In Maine, Massachusetts, and arbitration. In the case of Williams t". Craig, New York, any personal controversy may be 1 Dal. R. 313, Chief Justice McKean gives made the subject of arbitration. The stat- a description of four of these kinds of refer- utes of Delaware, Iowa, and Texas, allow a ence in the following words: "There are reference of any matter in litigation ; and four species of awards, first, those made by those of Arkansas, authorize a reference, by mutual consent, in pursuance of arbitration- agreement in writing, in cases where no suit bonds entered into out of court; sexuiidly, is pending. In general, there is no necessity those which are made in a cause depending for the choice of an umpire, as the statutes in a court of law or equity, upon consent either direct the arbitrators to be of an of the parties to refer the matter in vari- uneven number, or else allow them to be ance (which are awards at common law) ; so chosen ; thus, in Florida, Kentucky, iklidly, those which are made under a rule California, Massachusett.-*, Mississippi, New of court, by virtue of the statute of 9 & 10 Hamjjshire, New Jersey, New York, Ohio. Will. 3, c. 15, which was calculated to rem- and Vermont, the dispute may be referred to edy the delay and circuity of action, at- one or more persons ; if one only should be tendant upon awards made merely in pur- chosen, he is of course the umpire, but it is suanee of arbitration-bonds, without the in- customary to choose an uneven number at tervention of a controlling power to compel first, obviating the necessity of an umpire, the acquiescence of the parties. These are In Arkansas any number of referees, not ex- the only awards in use at this day in England, ceeding five, may be chosen, while in Dela- but the legislature of Pennsylvania, in the ware the number is fixed at three. The laws year 1705, introduced another species here, of Texas and Louisiana, regulating arbitra- which a-re, fourthly, those awards, or reports, tions and awards, pre.?eribe the manner of that are made in pursuance of the act of As- choosing an umpire; the former requiring, sembly, setting forth, that 'when the plain- that where one is chosen it shall be at the tiff and defendant consent to a rule of court, same time with the original arbitrators ; and for referring the adjustment of their accounts the latter, on the contrary, giving power to certain persons, mutually chosen by them to the arbitrators themselves to appoint an in open court, the award, or report, of such OF ARBITRATION. 261 to the more amicable expedient of arbitration. And in some transactions, especially in articles of copartnership between tra- • referees being made according to the submis- sion of the parties, and ajipioved by the court, and entered upon the record, or roll, shall hiive the same effect, and be as available in law, as a verdict by twelve men.' 1 State Ls. 48 ; 4 Ann. c. 36 ; act of 1705 ; 1 Sm. Laws, 50." " This act differs essentially from the statute of Will. .3, in many respects, but particularly, that to render a report, or award, valid and effectual, the former requires that it be approved by the court ; but no such provision is made by the latter, and, there- fore, awards under rules of court, are con- clusive in England, unless some corruption, or other misbehavior in the arbitrators, is proved. The courts of equity, indeed, have taken a wider ground, and wherever a plain error appears, either in matter of fact or law, it seems, they will make it an object of in- quiry ; 2 Vern. 705 ; 1 Vern. 157 ; 3 Atk. 494. From some expressions in the authority, we might presume that the error must be appar- ent on the award; but as the chancellor, at the same time, speaks generally, that it must be set forth in the bill for relief, there is, at least, great room to doubt upon the subject. "In Pennsylvania, however, since the revolution, as the approbation of the court is made a necessary ingredient in the confirma- tion of reports, we have thought it our duty from time to time, to inquire into the allega- tions against them, before we gave them our sanction. But in doing this we have always confined ourselves to two points ; first, whether there is an evident mistake in matter oifact ; or, secondly, whether the referees have clearly erred in matter of law. If either of these is satisfactorily proved, the argument is, surely, as strong for setting a report aside, a.s where injustice has been done by the corruptions, or other nii.'-conduct of the referees.'" The fifth species of award, is that created by the act of the 21st of March, ISOfi (4 Sm. Ls. 320), wherein it is provided, "That it shall be lawful for any person or persons, de- sirous of settling any dispute or controversy, by theraselve.«, their agents, or attorneys, to enter into an agreement in writing, to refer such dispute or controversy to certain persons to be by them mutually chosen," Ac. By the 3d section of the Revised Act of 1836, on the subject of voluntary arbitrations, a new modification of the voluntary system is intro- duced, it being enacted, that "It shall be lawful, also, for the parties to any suit, to consent, as aforesaid, to a rule of court, for referring all matters of fact in controversy in such suit, to referees, as aforesaid, reserv- ing all matters of Law arising thereupon, for the decision of the court, and the report of such referees, setting forth the facts found by them, shall have the same effect as a special verdict, and the court shall and may pro- ceed thereupon, in like manner as upon a special verdict," &c. The last species of award, being the com- pulsory system, authorizes either party to enter a rule of reference, and regulate the proceedings on arbitration ; the provisions of this system will be found in the acts of 20th March, 1810 (5 Sm. Laws, 131) ; 25th of February, 1813 (6 Sm. Laws, 28) ; 2Sth of March, 1820 (Pamp. Ls. 172); and the revised act on compulsory arbitration, of the 16th of June, 1836. This system originated from the violent opposition at one time felt in Penn- sylvania to the common law ; it is alluded to by Mr. Duponceau in his Treatise on Juris- diction, page 102, thus : " In Pennsylvania it was for some time believed that the legisla ture would abolish the common law altogether. Violent pamphlets were published to insti- gate them to that measure. The whole, hovr- ever, ended in a law for determining all suits by arbitrators in the first instance, at the will of either party:" A recent act of the legislature, passed May 1, 1861 (Pamp. Ls. 521), has repealed the act of 1836 in refer- ence to compulsory arbitration, so far as the same relates to the city and county of Phila- delphia, so that this mode of settling disputes and controversies cannot now be there re- sorted to. By the voluntary system of arbitration, in Pennsylvania, any person or persons may be chosen as arbitrators by the parties ; and by the compulsory system, the number of arbi- 262 OF CHOSES IN ACTION. ders, it is usual to stipulate tliat, if any dispute shall arise, it shall be referred to the determination of two indifferent persons as trators is to be either three or five, and if they cannot ngree, the discretion of appoint- ing is left with the prothonotary of the court ; but the parties inny agree to refer the dis- pute to one person ; and the act of 1836, contains precise directions as to the practice of appointing arbitrators, or an umpire. Ou the general subject of statutory arbitra- tion, and the practice therein, see the follow- ing cases; Beverly et al. v. Stevens, 17 Ala. R. 701; Gerrish et al. v. Ayres et al., 3 Scam. R. 245 ; Niles v. The Board of Com- missioners of the Sinking Fund, 8 Blackf. R. 158; Anderson f. Farnham et al., .'54 Maine R. 161 ; Dickey v. Sleeper, 13 Mass. R. 244 ; Coflfin V. CotUe, 4 Pick. R. 454 ; Shearer v. Mooers, 19 Pick. R. 308 ; Scudder v. John- son, 5 Mo. R. 561; Bowes v. French, 11 Maine R. 182; Craig v. Craig, 4 Halst. R. 198; Ferris v. Mann, 2 Zabr. R. 161 ; Free- born V. Denman, 3 Halst. R. 116; Ex parte Vasques, 5 Cow. R. 29 ; Dodge v. Water- bury et al., 8 Cow. R. 136; AVells v. Dain, 15 Wend. R. 99 ; Waugh v. Mitchell, 1 Dev. & Bat. Eq R. 521 ; Large v. Passmore et al., 5 Serg. & Raw. R. 51 ; Todd v. Rough, 10 Id. 18 ; Horton v. Stanley, 1 Miles's R. 418 ; Pennington v. Rowman, 10 Wat. R. 283 ; Fordi>. Keen, 13 Pa. St. R. 179; Gibson v. Broadfoot, 3 Desauss. R. 584 ; Parnell v. King et al.. Rice's R. 376 ; Carsley v. Lind- say, 14 Cal. R. 390 ; Low v. Nolte, 15 111. R. 368. But the fact that the statutes of a State have provided a method of arbitration and reference, does not abrogate the common law system, which will still remain in existence unless expressly abolished ; Martin v. Chap- man, 1 Ala. R. 278; Byrd v. Odeur, 9 Id. 756 ; Titus V. Scantling, 4 Blackf. R. 90 ; Tyler V. Dyer, 13 Maine R. 41 ; Mooer's Admr. v. Allen, 35 Id. 276 ; Camp et al. v. Root, 18 Johns. R. 22 : Waine v. Elderkin, 1 Chand- ler's (Wis.) R. 219; Wells v. Lain, 16 Wend. R. 99 ; Valentine v. Valentine et al., 2 Barb. Ch. R. 430 ; Gray v. Wilson, 4 Wat. R. 39 ; Graham et al. v. Hamilton, 1 Bin. R. 461 ; Graham v. Graham, 9 Pa. St. R. 254 ; S. C. 12 Pa. St. R. 128 ; Allen v. Chase, 3 Wis. R. 249 f and where an arbitration is * had under the common law, an umpire may of course be chosen, if a necessity for one should arise, as well as in those cases where the statutes of the State make provision for the election of an umpire, and he will be subject to the regulations of the common law on that subject, unless the laws of the State provide otherwise ; Ramsey v. Edwards, 17 Conn. R. 309 ; Falconer v. Montgomery, 4 Dal. R. 232; Passmore v. Pettit et al.. Id. 271 ; Crabtree v. Green, 8 Ga. R. 8; Keans V. Rankin, 2 Bibb's R. 88; Tyler v. Webb, 10 B. Mon. R. 123 ; Knowlton v. Horner, 29 Maine R. 552 ; Rigden v. Martin, 6 Har. & Johns. R. 403 ; McKinstry v. Solomons, 2 Johns. R. 57 ; S. C. 13 Id. 27 ; Van Court- landt et al. v. Underbill et al., 17 Id. 405 ; Butler V. The Mayor, Ac, of New York, 1 Hill's (N. Y.) R. 489; Boyer v. Aurand, 2 Wat. R. 74 ; Graham v. Graham, 9 Pa. St. R. 254, S. C. 12 Pa. St. R. 128 ; Sharp v. Lipsey, 2 Bail. R. 113 ; Pack v. Wakeley et al., 2 McCord's R. 279 ; Shields v. Penn, Overt. R. 313 ; Richards «. Brockenborough's Admr., 1 Rand. R. 449; Rison v. Berry, 4 Id. 275 ; Bassett's Admr. v. Cunningham's Admr., 9 Gratt. R. 684. This kind of sub- mission may be revoked at any time before the award is made ; Martin v. Chapman, 1 Ala. R. 278 ; Randal v. Chesapeake, Ac, Canal Co., 1 Harring. R. 235 ; Peters's Admr. V. Craig, 6 Dana's R. 307 ; Allen v. Watson, 16 Johns. R. 205 ; Frets v. Frets, 1 Cow. R. 335 ; Erie v. Tracy, 2 Grant's Cas. 20 ; Da- vis V. Maxwell, 27 Ga. R. 368 ; and it is ipso facto revoked by the death of either party ; Mooer's Admr. v. Allen, 35 Maine R. 276 ; Ferris v. Mann, 2 Zabr. R. 161 ; Free- born V. Denman, 3 Halst. R. 116; Frets f. Frets, 1 Cow. R. 335 ; Tyson v. Robinson, 3 Ired. R. 333 ; unless there should be an agreement to the contrary ; Bailey v. Stew- art, 3 Wat. & Serg. R. 560 ; but where the reference is made a rule of court, the death of one of the parties will not revoke it, if the cause of action survives ; Bacon v. Crandon, 15 Pick. R. 79 ; Tyson v. Robinson, 3 Ired. R. 333 ; but see, contrary to the last, Power OF ARBITRATION. 263 arbitrators, or of their umpire, who is usually and very properly required to be chosen by the arbitrators before they proceed to take the subject in question into consideration. («) And it is agreed that the award in writing of the arbitrators, or of their umpire in case of their disagreement, shall be binding and con- clusive on all parties. As the courts of law and equity have full jurisdiction on all questions arising out of agreements of any kind, it follows that they retain a jurisdiction over matters which the parties them- selves have agreed should be referred to arbitration.(6) Notwith- () Sainon's Case, 5 Rep. 77 b. 270 OF cnosES in action. rule of law is id cerium est quod cerium rcddi poiesi, and therefore an award that one of the parties should pay the costs of an action is good without fixing the amount of the costs, for that may be ascertained by the taxing officer.(<7) On the question of finality many cases have arisen. If the arbitrators be empowered to decide all matters in difterence between the parties, the award will not necessarily be wanting in finality for not deciding on all such matters, unless it appear to have been required that all such matters should be determined by the award. (r) If the award reserve to the arbitrators, (s) or give to any other pcrson,(/) or to one of the parties,(i6) any further authority or discretion in the matter, it will be bad for want of finality. And if the. award be that any stranger to the reference should do an act, or that money should be paid to, or any other act done in favor of a stranger, unless for the benefit of one of the parties, (x) such award will be void.(;^!/) An award, however, may be partly good and partly bad, provided the bad part is independent of and can be separated from that wliieh is good.(2:) But if, by reason of the invalidity of part of the award, one of the parties cannot have r^T-j.! ^^^® advantage ^intended for him as a recompense for that ■- -' which he is to do, according to that part of the award which would otherwise be valid, the whole will be void. (a) If it should appear on the face of the award that the arbitrators, in- tending to decide a point of law, have fallen into an obvious mistake of the law, the award will be invalid.(6) But where subjects involving questions both of law and fact are referred to arbitration, the arbitrators may make an award according to what they believe to be the justice of the case, irrespective of the (q) Cargey v. Aitcheson, 2 B. & Cress. 170, E. C. L. R. vol. 9 ; S. C. 3 Dowl. & Ry. 433 ; 2 Wni.s. Saund. 293 b, n. (a). (r) Wrightson v. Bywater, 3 Mee. & Wels. 199 ; 1 Wm.s. Saund. 32 a, n. (a). (s) Manser v. Heaver, 3 Bar. & Adol. 295, E. C. L. R. vol. 5. (t) Tonilin v. Mayor of Fordwich, 5 Ad. & Ell. 147, E. C. L. R. vol. 31. (u) Ulover v. Barrie, 1 Salk. 71. (x) Wood V. Adcock, 7 Ex. Rep, 468. (y) Cooke v. Whorwood, 2 Saund. 337 ; Adam v. Statham, 2 Lev. 235 ; Fi.sher v. Piinb- ley, 11 East, 188. (z) Fox V. Smith, 2 AVils. 267 ; Aitcheson v. Cargey, 2 Bing. 199, E. C. L. R. vol. 9. (a) 2 Wms. Saund. 293 b, n. (1). (i) Ridout V. Pain, 3 Atk. 494,- Richardson v. Nourse, 3 Barn. & Aid. 237, E. C. L. R. vol. 5. OF ARBITRATION. 271 law on any particular point.(c) And it is now provided, that it shall be lawful for the arbitrator, upon an}' compulsory reference under the Common Law Procedure Act, 1854, or upon any refer- ence by consent of parties, where the submission is or may be made a rule or order of any of the superior courts of law or equity at Westminster, if he shall think fit, and if it is not pro- \dded to the contrary, to state his award as to the whole or any part thereof in the form of a special case for the opinion of the court; and when an action is referred, judgment, if so ordered, may be entered according to the opinion of the court.((/) When the submission to arbitration is not made the rule of any other court,(e) the Court of Chancery, according to the ordinary principles of equity, has power to set aside the award for corrup- tion or other misconduct on the part of. the arbitrators, or if they should be mistaken in a plain point of law or fact.(/) If the submission be made a rule of court under the above-mentioned statute of Will. III,(^) the court of which it is *made a ^-^-.t^r-i rule has power to set aside the award, not only on the '- -• grounds of corruption or undue practice mentioned in the act, but also for mistakes in point of law;(A) and no other court has a right to entertain any application for this purpose.(z) The appli- cation to set aside the award must, however, be made within the time limited by the act.(A-) But although the time limited by that statute may have expired, yet, if there be any defect apparent on the face of the award, the court will not assist in carrying it into eflect by granting an attachment for its non-performance.(^) If the submission to arbitration be made by rule or order of the court in any cause independently of the statute, the court still retains its ancient jurisdiction of setting aside the award on ac- count either of the misconduct of the arbitrators, or of their mis- take in point of law.(wi) In analogy, however, to the practice ' (<•) Re Badger, 2 Barn. & Aid. 691 ; Young v. Walker, 9 Ves. 364 ; Hodgkinson v. Fernie, 3 C. B. N. S 189, E. C. L. R. vol. 91. (d) Stat. 17 & 18 Vict. c. 125, s. 5. (/) Ridout v. Pain, 3 Atk. 494. (e) Nichols V. Roe, 3 Myl. & Keen, 431. (g) Stat. 9 & 10 Will. Ill, c. 15. {h) Zachary f. Shepherd, 2 T. Rep. 781; Lowndes v. Lowndes, 1 East, 276, overruling Anderson v. Coxeter, 1 Str. 301 ; see 1 Wins. Saund. 327 d, n. {s). (i) Stat. 9 A 10 Will. Ill, c. 15, s. 2; Nichols v. Roe, 3 Myl. & Keen, 431. (>t) Lowndes v. Lowndes, 1 East, 276 ; a7ite, p. 167. (/) Pedley v. Qoddard, 7 T. Rep. 73. (m) Lucas v. Wilson. 2 Burr. 701. 272 OF CHOSES IN ACTION. under the statute of Will. Ill, the court in ordinary cases re- quires application for setting aside the award to be made within the time limited by that statute ;(?2) but upon sufficient grounds it will grant such an application, though made after the expiration of that time.(o) All applications, however, to set aside any award made on a compulsory reference under the Common Law Pro- cedure Act, 1854, must be made within the first seven days of the term next following the publication of the award to the parties, whether made in vacation or term ; and if no such application is made, or if no rule is granted thereon, *or if anv rule ^,^„^-. . . r 1761 granted thereon is afterwards discharged, the award is •- -• final. (7^) The court or a judge has also power to remit the mat- ters referred to arbitration, or any of them, to the reconsideration of the arbitrator, upon such terms as to costs and otherwise as to such court or judge may seem proper.(5') It is usual to provide for the appointment of an umpire in case the parties should disagree. But the Common Law Procedure Act, 1854, now provides, (r) that when the reference is to two arbi- trators, and the terms of the document authorizing it do not show that it was intended that there should not be an umpire, or provide otherwise for the appointment of an umpire, the two arbitrators may appoint an umpire at any time within the period during which they have power to make an award, unless they be called upon to make the appointment sooner, by notice under the follow- ing provision. And if, where the parties or two arbitrators are at liberty to appoint an umpire or third arbitrator, such parties or arbitrators do not appoint an umpire or third arbitrator, or if any appointed umpire or third arbitrator refuse to act, or become in- capable of acting, or die, and the terms of the document author- izing the reference do not show that it was intended that such a vacancy should not be supplied, and the parties or arbitrators respectively do not appoint a new one, then any party may serve the remaining parties or the arbitrators, as the case may be, with a written notice to appoint an umpire or third arbitrator ; and, if (w) Maearthur v. Campbell, 5 Barn. & Adol. 518, E. C. L R. vol. 27. (o) Rawsthorn v. Arnold, 6 Barn. & Cress. 629, E. C. L. R. vol. 13 ; S. C. 9 Dow. & Ry. 556. (/)) Stat. 17 ..t 18 Vict. c. 125, s. 9. (r) Stat. 17 k 18 Vict. c. 125, s. 14. (q) Ibid. s. 8. OF ARBITRATION. 273 within seven clear days after such notice shall have been served no umpire or third arbitrator be appointed, it shall be lawful for any judge of any of the superior courts of law or equity at West- minster, upon summons *to be taken out by the party r^-^^^-, having served such notice, to appoint an umpire or third arbitrator, who shall have the same power to act in the reference and make an award as if he had been appointed by consent of all parties.(5) If an umpire be appointed, his authority to make an award commences from the time of the disagreement of the arbitra- tors,(^) unless some other period be expressly fixed ; and if, after the disagreement of the arbitrators, he make an award before the expiration of the time given to the arbitrators to make their award, such award will nevertheless be valid.(M) And it is now provided that if the arbitrators shall have allowed their time, or their extended time, to expire without making an award, or shall have delivered to any party, or to the umpire, a notice in writing stating that they cannot agree, the umpire may enter on the refer- ence in Heu of the arbitrators. (x) The umpire must be chosen by the arbitrators in the exercise of their judgment and at the same time,(^) and must not be determined by lot,(^) unless all the parties to the reference consent to his appointment by such means. (a) In order to enable him to form a proper decision, he ought to hear the whole evidence over again,(6) unless the parties should be satisfied with his deciding on the statement of the ar- bitrators.(c) And the whole matter *in difference must r^-i Ygl be submitted to his decision, and not some particular points only on which the arbitrators may disagree. (. Rogers, 11 his legacy ; McClanahan's Admr. v. Davis et Hump. R. 559. And, if an executor refuses al., 8 How. R. 170 ; Rea v. Rhodes, 5 Ired. to assent to a legacy without adequate cause, Eq. R. 148 ; Nunn v. Owens, 2 Strobh. R. the legatee may come into equity to compel 101 ; Hudson, Exr., v. Reeve, 1 Barb. Sup. an assent; Vaughan v. Vaughan, .30 Ala. R. Ct. R. 89 ; in which last case it was held, that .329 ; Lewis v. Darling, 16 How. (U. S.) R. 1. where the executrix and legatee are the same But the consent of the executor may be im- person, the executrix, as such, might assent plied from the nature of the circumstances; to the legacy to herself, and that assent would Squires et ux. v. Old, 7 Hump. R. 454; vest the title in her; and this is true also of Hall v. Hall, 27 Miss. R. 458 ; and the assent specific legacies ; West v. Smith et al., 8 How. of an executor to the bequest of a life estate, R. 411 ; Lark et al. v. Linstead et al., 2 Md. operates as to the bequest of the remainder OF PERSONAL ANNUITIES, STOCKS, AND SHARES. 285 And the bank may require all the executors who shall have proved the will to concur in the transfer.(^) And the registry of specific bequests of stock is no longer required, but merely the registry of the names of the deceased party, and of his executors and administrators. (2) *The next kind of incorporeal personal property which r*-.Q^-| we shall mention are shares in joint stock companies. Joint stock companies were formerly of two kinds, those which were incorporate, or made into corporations, and those which were not so. Corporations are legal personages, always known by the same name, and preserving their identity through a perpetual succes- sion of natural persons. They are either corporations sole, com- posed only of one person, such as a bishop, a parson, or the cham- berlain of London ; or corporations aggregate, composed of many persons acting on all solemn occasions by the medium of their com- mon seal;{a) and it is of such corporations that we are now about to speak. Such corporations may be created either by charter con- ferred by the Queen's letters-patent, or by act of Parliament.^ And, (y) Stat. 8 & 9 Vict. c. 97, s. 1. (z) Sect. 2. {a) See Bac Abr., tit. Corporations ; 1 Black. Com. ch. 18. over, so that no new assent is necessary; called upon to account, sold the bank stock, Thrasher v. Ingram, 32 Ala. R. 645 ; Hotch- and paid over the proceeds, $1460.34, to the kiss V. Thomas, 6 Jones's L. R. 537 ; Gay v. duly authorized agent of the beneficiary. Gay, 29 Ga. R. 549 ; and when once given can- which he received as and for the $1000 legacy, not be retracted; Rossis. Davis, 17 Ark. R. the stock having been sold with his knowledge 113 ; but the assent is no waiver of his right and as.sent ; it was held, that as there was no to a refunding bond ; Nelson v. Cornwell, 11 evidence that the legatee was advised of the Gratt. R. 724 ; and see, also, Rea v. Rhodes-, purchase of the bank stock, or ever assented 5 Ired. Eq. R. 148 ; White v. White, 4 Dev to it, the executor had a right to sell the R. 257 ; Gums v. Capehart, 5 Jones's Eq. R. stock and pay over the proceeds, for the stock 242 ; Suggs V. Sapp, 20 Ga. R. 100. did not belong to the legatee, and the execu- In the case of Norman et ux. v. Storer et tor was guilty of no conversion or wrong in al., 1 Blatch. C. C. R. 593, where $1000 was selling it. given to a legatee by will, the money to be ' In the United States, corporations are raised out of the testator's estate, and paid created in all cases, under the authority of over to the legatee, and the executor and Acts of Congress, or of Acts of Assembly, trustee under the will having rai.sed the These may be general or special acts. The money, instead of paying it as required, pur- former confer authority on courts to grant chafjed bank stock with it, in his own name, charters in designated cases, or allow indi- in trust for the legatee ; and afterwards, when viduais when associated together, to incor- 286 OF INCORPOREAL PERSONAL PROPERTY. till a few years ago, all joint stock companies which had not ob- tained tliis ex]^)ensive sanction were in fact private partnerships on an extended scale. In the present reign, however, as we shall hereafter see, provision has been made for the incorporation of all public joint stock companies ;(6) but such companies as are incorporated by letters-patent or special act of Parliament still enjoy peculiar privileges. These companies therefore first re- quire notice. The nature and incidents of shares in the joint stock of compa- nies incorporated by letters-patent or act of Parliament have generally been determined by their respective charters or acts of incorporation. And in the great majority of cases, and in all the i-^ modern charters *and acts of incorporation, the shares are '- -' declared to be personal estate, and transmissible as such. In a few of the older companies, of which the New Eiver Com- pany is an instance, (c) the shares are real estate in the nature of incorporeal hereditaments. For the future, however, all the provisions contained in special acts for the incorporation of joint stock companies will, as far as possible, be the same. For an act of Parliament has been passed " for consolidating in one act certain provisions usually inserted in acts with respect to the con- stitution of companies incorporated for carrying on undertakings of a public nature. "((iy Other acts have also been passed for {b) Stat. 7 & 8 Vict. c. 110 ; partly repealed by stat. 20 & 21 Vict. c. U, s. 23 ; 7 & 8 Vict. c. 113 ; partly repealed by stat. 20 & 21 Vict. c. 49 ; all now repealed by the Compa- nies' Act, 1862, stat. 25 & 26 Vict. c. 89. (c) Drybutter t?. Bartholomew, 2 P. Wms. 127. (d) Stat. 8 & 9 Vict. c. 16 ; extended by stat. 26 & 27 Vict. c. 118. porate themselves by pursuing certain form- Ls. of N. J. (1861), pp. 151 to 156 ;"2 Revis. alities. Special acts of incorporation, whether Stats, of N. Y. (1859), pp. 476 to 825 ; Revis. of Congress or of Assembly, either themselves Stats, of Vt. (1839), 378 to 394 j 1 Matthew's create the corporations, or authorize the ex- Dig. of Ls. of Va. (1866), pp. 421 to 433; ecutive, on compliance with certain stipulated Purd. Dig. (1861), pp. 194 to 202. Andstatutes conditions, by the persons who desire to be in- analagous to the 8 & 9 Viet. c. 16, s. 4, Ac, corporated, to issue to such persons letters- are not unusual in this country ; New Dig. Ls. patent of incorporation. of Georgia (1851), by T. R. R. Cobb, vol. xi, 1 The respective codes of several of the 431 to 434; Stats, of S. C ., vol. vi, 302 to States, contain general provisions relative 306. The Manufacturing Companies' Act, to all corporations ; Thomps. Dig. of the Ls. Purd. Dig. (1861), pp. 689 to 696 ; and Purd. of Florida, 268 to 284 ; Revis. Stats, of Dig. Suppl. (1864), pp. 1347 to 1351 ; The Mass. (1860), pp. 384 to 389 ; 2 Compiled Ls. Turnpike Bridge and Plank Road Companies Michigan (1867), pp. 699 to 706 ; N. H. Com- Act, Purd. Dig. (1801), pp. 979 to 988 ; The piled Stats. (1853), 310 to 374 ; Nixon's Dig. Railroad Companies Act, lb. 835 to 850. r OF PERSONAL ANNUITIES, STOCKS, AND SHARES. 287 consolidating certain provisions usually inserted in acts author- izing the taking of lands for undertakings of a public nature ;(t') in authorizing the making of railways ;(/) in acts for construct- ing or regulating markets and fairs ;(^) in acts authorizing the making of gasworks for supplying towns with gas ;(A) or of water- works for supplying towns with water ;(i) in acts for the making and improving of harbors, docks, and piers ;(^) in acts for paving, ^ draining, cleansing, iglhting, and improving towns \il) and in acts authorizing the making of cemeteries.(w) In each of these acts enactments are made with respect to various matters usually con- tained in acts of incorporation for the above purposes; and it is provided that the clauses and provisions of these general acts, save so far as they shall be expressly varied or excepted by any special act, shall apply to every undertaking which shall there- after *be authorized by act of Parliament for any of the r;i,-|QQ-i purposes above referred to. A uniformity is thus given to ^ the constitution of such companies, and the length of the acts of Parliament required to establish them has been greatly dimin- ished. A short title, for the convenience of reference, is given to each act. The act first mentioned is called " The Companies' Clauses Consolidation Act, 1845, "(?z) and all the others have similar titles. The Companies' Clauses Consolidation Act^ contains pro^dsions with respect to the distribution of the capital of the company (e) Stat. 8 & 9 Vict. c. 18 ; extended by stat. 23 & 24 Vict. c. 106. (/) Stat. 8 & 9 Vict. c. 20 ; extended by stat. 26 & 27 Vict. c. 92. (g-) 10 & 11 Vict. c. 14. (/«) Stat. 10 k 11 Vict. c. 15. (i) Stat. 10 & 11 Vict. c. 17 ; extended by stat. 26 A 27 Vict. c. 93. {Ic) Stat. 10 & 11 Vict. c. 27. (w) Stat. 10 & 11 Vict. c. 65. • {I) Stat. 10 & 11 Vict. 0. 34. (w) Stat. 8 & 9 Vict. c. 16, s. 4. 1 In the preceding page, a reference has for manufacturing purposes, and the like. The been made to several acts, analogous to advantage of these enactments is found in the the "Companies' Clauses Consolidation Act," fact, that they form a general law, applicable and "the act for the registration, incor- to all corporations falling under the class to poration, and regulation of joint stock com- which they relate, and as such are drafted panies," and among others, to the Pennsyl- witli more care, and more thoroughly con- vania Turnpike Act, and the Manufacturing sidered than private bills of incorporation, Companies Act, of the same State. Some whereby many of the dangers resulting from of these acts are not entirely general, but hasty legislation are avoided, relate to certain kinds of corporations, as 288 OF INCORPOREAL PERSONAL PROPERTY. into sliares, which are to be personal estate, and transmissible as such ;(o) with respect to the transfer of shares, which must be by deed duly stamped, in which the consideration shall be truly stated, (7)) and which cannot take place until the transferror shall have paid all calls for the time being due on every share held by him;(^^) with respect to the transmission of shares by will, intes- tacy, marriage of a female, &c. ;(r) with respect to the payment of calls,(5) which may be made payable by instalmeuts,(/) and the forfeiture of shares for nonpayment of calls ;(c/) with respect to the remedies of creditors of the company against the sharehold- er8,(t') which are confined to the extent of their shares in the capital of the company not then paid up, and may be exercised only in case there cannot be found sufficient property or effects of the company whereon to levy execution ;(w) with respect to the r*iQj.i ^borrowing of money by the company,(a:) the conversion ^ -'of the borrowed money into capital,(?/) the consolidation of the shares into stock,(z) general meetings,(a) the appointment and rotation of directors, (6) the powders, (c) proceedings and liabili- ties of the directors, (c?) the appointment and duties of auditors,(e) the accountability of the olficers of the company,(/) the keeping of accounts,(^) the making of dividends,(A) and of by-laws, (/) the settlement of disputes by arbitration, (^) the giving of notices, (^) the recovery of damages and penalties,(?w) and appeals with respect to such damages or penalties to the quarter sessions ;(w) and (o) Sect. 7. (;;) Sect. 14. {g) Sect. 16; Hall v. Norfolk Estuary Company, Q. B. 1(5 Jiir. 149; Regina v. London- derry and Coleraine Railway Company, 13 Q. B. 998, E. C. L. R. vol. 66. (;■) Sects. 18, 19. (s) Sects. 21-28. See Wolverhampton New Waterworks Company v. Hawkesford, 6 C. B. N. S. 336, E. C. L. R. vol. 95. 0(f) Aiubergate, o- rated{k) as from the date of the certificate, by the name of the company as set forth in the deed of ^settlement, with power to have a common seal, but on which was to be '- -' inscribed the name of the company, and with other powers neces- sary to the conduct of their affairs, (^) including a power to hold lands on obtaining a license for that purpose from the Board of Trade. (m) Provision was also made for the registry of joint stock comjjanies then existing, and for the alteration of their deeds of (e) Stat. 7 & 8 Vict. c. 110, s. 4. See, also, stat. 10 & 11 Vict. c. 78, s. 7 ; Abbott v. Rogers, C. P. 1 Jur. N. S. 804; 16 C. B. 277, E. C. L. R. vol. 81. (/) Stat. 7 4 8 Vict. c. 110, s. 4 ; 10 & 11 Vict. c. 78, ss. 4, 5, 6. (g) Stat. 7 & 8 Vict. c. 110, s. 7. (A) Sects. 11-13. (i) Sect. 14. (X) Banwen Iron Company v. Barnett, 8 C. B. 406, E. C. L. R. vol. 65. {I) Stat. 7 )' But no banking company claim- ing to issue notes in the United Kingdom shall be entitled to limited liability in respect of such issue. (g) Not more than ten persons may carry on the business of banking as partners, unless they are registered under this act, or are formed in pursuance of some other act of Parliament or of letters-patent; and no partner- ship consisting of more than twenty persons can now be formed {k) Stat. 18 & 19 Vict. c. 1.33. (/) Stat. 20 & 21 Vict. c. 14. (i) Pp. 182, 183. (w) Stat. 20 & 21 Vict. c. 49. (Jc) Stat. 19 & 20 Vict. c. 47. (w) Stat. 20 & 21 Vict. c. 80 ; 21 & 22 Vict, c 60 ; 21 & 22 Vict. c. 91. (o) Stat. 25 & 26 Vict. c. 89. (q) Sect. 182. {p) Sect. 6. 1 The liability of the stockholders "of in- erally limited, either upon the amount the corporations is in general regulated by the stockholder has subscribed, or the amount charter, or the general laws under which the he has actually paid up towards the capital incorporation has come into existence ; this stock of the corporation, liability is sometimes absolute ; but most gen- OF PERSONAL ANNUITIES, STOCKS, AND SHARES. 295 for the purpose of carrying on any other business that has for its object the acquisition of gain by the partnership or by the in- dividual members thereof, unless it be registered as a company under this act, or be formed in pursuance of some other act of Parliament, or of letters-patent, or be a company engaged in working mines within and subject to the jurisdiction of the Stan- naries.(7') The liability of the members of a company formed under this act may, according to the memorandum of association, be limited either to the amount, if any, unpaid on the shares respectively held by them, or to such amount as the members may respectively undertake by the memorandum of association to contribute to the assets of the company in the event of its *being wound up. (5) In the former case, the company is r^o/^o-l said to be limited by shares, and in the latter, to be lim- '- ited by guarantee. The memorandum of association of a company limited by shares must contain the following things: 1. The name of the company with the addition of the word "limited," as the last word of such name. 2. The part of the United Kingdom in which the registered office of the company is proposed to be situate. 3. The objects for which the company is to be established. 4. A declaration, that the liability of the members is limited. 5. The amount of capital with which the company proposes to be registered, divided into shares of a certain fixed amount; subject to the following regulations: 1. That no subscriber shall take less than one share. 2. That each subscriber of the memorandum of association shall write opposite to his name the number of shares he takes.(^) When the company is limited by guarantee, its memorandum of association must contain the first three of the above-mentioned requisites; and, (4), a declaration, that each member undertakes to contribute to the assets of the company, in the event of the (r) Sect. 4. (0 Sect. 8. (s) Stat. 25 & 26 Vict. 0. 89, 8. 7. 296 OF INCORPOREAL PERSONAL PROPERTY. same being wound up during the time that he is a member, or within one year afterwards, for payment of the debts and liabilities of the company contracted before the time at which he ceases to j.^ be a member, and of the *costs, charges and expenses of '- '^ -^ winding up the company, and for the adjustment of the rights of the contributories amongst themselves, such amount as may be required, not exceeding a specified amount, (w) If no limit be placed on the liability of the members, the com- pany is called an unlimited company, and its memorandum of association must contain only the following things : 1. The name of the company. 2. The part of the United Kingdom in which the registered office of the company is proposed to be situate. 3. The objects for which the company is to be established.(a:;) The memorandum of association must bear the same stamp as if it were a deed, and must be signed by each subscriber in the presence of and be attested by one witness at the least. When registered, it binds the company and the members thereof to the same extent as if each member had subscribed his name and af- fixed his seal thereto, and there were contained in the memoran- dum a covenant on the part of himself, his heirs, executors, and administrators, to observe all the conditions of such memorandum, subject to the provisions of the act.(^) No alteration can be made by any company in the conditions contained in its memorandum of association ; except that a company limited by shares may in- crease its capital by the issue of new shares of such amount as it thinks expedient, or may consolidate and divide its capital into shares of larger amount than its existing shares, or convert its r*9nj.i P^^^^'^P shares into *stock;(z) and except that any com- pany may, with the sanction of a special resolution of the company as after mentioned, and with the approval of the Board of Trade, change its name ; but such change will not affect any of the rights or obligations of the company, (a) (ii) Stat. 25 & 26 Vict. c. 89, s. 9. (z) Stat. 25 & 26 Vict. c. 89, s. 12. {X) Sect. 10. (a) Sect. 13. (y) Sect. 11. OF PERSONAL ANNUITIES, STOCKS, AND SHARES. 297 The memorandum of association may in the case of a company limited by shares, and must in the case of a company limited by guarantee or unlimited, be accompanied, when registered, by articles of association signed by the subscribers to the memoran- dum of association, and prescribing such regulations for the com- pany as the subscribers shall deem expedient. These articles must be expressed in separate paragraphs numbered arithmetic- ally. The act contains a table marked A, in the first schedule thereto, of provisions, all or any of which may be adopted in the articles of association. (6) The regulations contained in this table will, if not excluded or modified by the articles, be deemed, so far as they are applicable, to be the regulations of every company limited by shares. (e) The articles of association must be printed and stamped as if they were contained in a deed, and must be signed and attested in the same manner as the memorandum of association ; and when registered, they bind the company and the members thereof to the same extent.(c/) The memorandum and articles, if any, are to be registered by the registrar of joint-stock companies ;(e) and, thereupon, the company is incorporated, with power to hold lands ; and a certificate of the incorporation of any company given by the registrar shall be conclusive evidence that all the requisitions of the act in respect of registration have been complied with.(/) Xo company formed for the *purpose r^f^^r^r-, of promoting art, science, religion, charity, or any other like object, not involving the acquisition of gain by the company, or by the individual members thereof, shall, without the sanction of the Board of Trade, hold more than two acres of land; but the Board of Trade may, by license under the hand of one of their principal or assistant secretaries, empower any such com- pany to hold lands in such quantity and subject to such conditions as they think fit.(^) All shares are to be personal estate. (A) Every company is required to keep a register of its members ;(i) and every company having a capital divided into shares is required to make out an annual list of its members, with other particulars, and to forward a copy thereof to the registrar of joint-stock (*) Sect. 14. (/) Sect. 18. {e) Sect. 15. (?) Stat. 25 & 26 Viot. c. 89, s. 21. (d) Sect. 16. (h) Sect. 22. («) Sect. 17.. (i) Sect. 25. 298 OF INCORPOREAL PERSONAL PROPERTY. companies,(/;) Xo notice of any trust, expressed, implied, or con- structive, is to be entered on the register.(^) And a certificate under the common seal of the company, specifying any shares or stock held by any member, is prima facie evidence of his title to the shares or stock therein specified. (m). And the register of members is prima fade evidence of any matters by the act directed or authorized to be inserted therein. (?/) Every company is bound by the act to have a registered office, to which all comm.unications and notices may be addressed. (o) And every limited company must keep its name painted or affixed on the outside of every office or place of business of the com- pany, in a conspicuous position, in letters easily legible, and must have its name engraven in legible characters on its seal, and must have its name mentioned in legible characters in all notices, ad- vertisements, bills, notes, indorsements, checks, orders for money or goods on behalf of the *company, and in all bills of '- ^ parcels, invoices, receipts, and letters of credit of the company.(;p) And every limited company is also required to keep a register of all mortgages and charges specifically aflr'ecting property of the company.(r^) And every limited banking com- pany, and every insurance company, and deposit, provident, or benefit society under the act, is required before it commences business, and afterwards on the first Monday in February, and the first Monday in August in every year, to make a statement of its capita], liabilities, and assets in a given form, to be put up in a conspicuous place in the office of the company. (?') Subject to the provisions of the act, and to the conditions con- tained in the memorandum of association, any company formed under the act may, in general meeting, from time to time, by passing a special resolution in manner after mentioned, alter all or any of the regulations of the company contained in the articles of association, or in the table marked A, in the first schedule, where such table is applicable to the company; or make new regulations to the exclusion of or in addition to all or an}- of the (>t) Sect. 26. (o) Sect. 39. (/) Sect. .30. (;;) Stat. 26 & 26 Vict. c. 89, s. 41. (7») Sect. 31. (q) Sect. 43. . (m) Sect. 37. (r) Sect. 44. OF PERSONAL ANNUITIES, STOCKS, AND SHARES. 299 regulations of the company ; and any regulations so made by special resolution shall be deemed to be the regulations of the company of the same validity as if they had been originally con- tained in the articles of association, and shall be subject in like manner to be altered or modified by any subsequent special reso- lution. (5) A resolution passed by a company under the act is deemed to be special whenever a resolution has been passed by a majority of not less than three-fourths of such members of the company for the time being entitled, according to the regula- tions of the company, to vote as may be present, in person or *by proxy (in cases where by the regulations of the com- r*9A7-| pany proxies are allowed), at any general meeting of which notice specifying the intention to propose such resolution has been duly given; and such resolution has been confirmed by a majority of such members for the time being entitled, accord- ing to the regulations of the company, to vote as may be present, in person or by proxy, at a subsequent general meeting, of which notice has been duly given, and held at an interval of not less than fourteen days, nor more than one month from the date of the meeting at which such resolution was first passed. At any such meeting, unless a poll is demanded by at least five members, a declaration of the chairman that the resolution has been carried shall be deemed conclusive evidence of the fact, without proof of the number or proportion of the votes recorded in fiivor or against the same. Notice of any such meeting shall be deemed to be duly given and the meeting to be duly held, whenever such notice is given and meeting held in manner prescribed by the reg- ulations of the company. In computing the majority, when a poll is demanded, reference shall be had to the number of votes to which each member is entitled by the regulations of the com- pany.(^) A copy of every special resolution must be printed and registered,(i^) and must be annexed to or embodied in every copy of the articles of association that may be issued after the passing of such resolution. (a-) Provision is made for the Avinding up of joint stock com- panies either by the court{^) or voluntarily ;(z) and if voluntarily, (s) Sect. 50. (x) Sect. 54. (0 Stat. 25 & 26 Vict. c. 89, s. 51. (y) Sects. 79-128. (h) Sect. 53. z) Sects. 129-I4Ci. 300 OF INCORPOREAL PERSONAL PROPERTY. the winding up may by the order of the court be subject to its supervision. (c/) Tlie court to which this jurisdiction is given is *the Court of Chancery, except in the case of mines sub- '- '^ -• ject to the jurisdiction of the Stannaries; but where the Court of Chancery makes an order for winding up a company under the act, it may, if it think fit, direct all subsequent pro- ceedings for winding up the same to be had in tlie Court of Bank- ruptcy having jurisdiction in tlie pkiee in which the registered office of the company is situate, (/^) The winding up is effected by Uquidators appointed for tliat purpose, and who if appointed by the court are styled official liquidators.(c) All persons liable to contribute to the assets of a company under the act, in the event of its being wound up, are called contributories.(c/) The liability of contributories is regulated by the following rules :{c) 1. Ko past member shall be liable to contribute to the assets of the company, if he has ceased to be a member for a period of one year or upwards prior to the commencement of the winding up : 2. ISTo past member shall be liable to contribute in respect of any debt or liability of the company contracted after the time at which he ceased to be a member : 3. No past member shall be liable, to contribute to the assets of the company unless it appears to the court that the ex- isting members are unable to satisfy the contributions re- quired to be made by them in pursuance of the act; 4. In the case of a company limited by shares, no contribu- tion shall be required from any member exceeding the amount, if any, unpaid on the shares in respect of which he is liable as a present or passed member : 5. In the case of a company limited by guarantee, no *con- [*209] tribution shall be required from any member exceeding the amount of the undertaking entered into on his behalf by the memorandum of association: {a) Sects. 147-152. {d) Sect. 74. (b) Stat. 25 & 26 Vict. c. 89, s. 81. (e) Sect. 38. (c) Sects. 92-97, 133-144. OF PERSONAL ANNUITIES, STOCKS, AND SHARES. 301 6. Xotliing in the act contained shall invalidate any provision contained in any policy of insurance or other contract, whereby the liability of individual members upon any such policy or contract is restricted, or whereby the funds of the company are alone made liable in respect of such policy or contract : 7. I^o sum due to any member of a company, in his character of a member, by way of dividends, profits, or otherwise, shall be deemed to be a debt of the company payable to Buch member in a case of competition between himself and any other creditor not being a member of the company ; but any such sum may be taken into account for the pur- poses of the final adjustment of the rights of the contrib- utories amongst themselves. Shares in joint stock companies are not goods, wares, or ynerchan- dise within the 17th section of the Statute of Frauds ; so that they do not require a written memorandum for a contract for their sale, when the value exceeds 10/., and the buyer does not accept and receive any part, nor give something in earnest to bind the bargain or in part payment.(/) And such shares were not con- sidered to be stock within the meaning of the Stock Jobbing Act above mentioned. (^) Several acts of Parliament have been passed for the *en- ^^ .. couragement of friendly societies, for the mutual relief of '- "^ their members and their families in case of sickness, old age, death, or other contingencies ;(/i) all of which are now consolida- ted into one act.(«) The rules of these societies are required to be certified by the registrar of friendly societies, and in whose custody a transcript of the rules of every friendly society is now required to be kept.(/.:) And it is now provided that the registrar {/) Humble v. Mitchell, II Ad. & Ell. 205, E. C. L. R. vol. .39; Knight v. Barber, 16 M. & W. fifi ; Bowlby V. Bell, 3 C. B. 284, E. C. L. R. vol. 54. See ante, p. 37. (g) Hewitt V. Price, 4 Man. & Gr. 355, E. C. L. R. vol. 43 ; Williams v. Tyre, 18 Beav. 366. {h) Stat. 10 Geo. IV, c. 56, amended by 4 >fc 5 Will. IV, c. 40 ; 3 & 4 Vict. c. 73 ; 9 A 10 Vict. c. 27; 13 & 14 Vict. c. 115 ; 15 & 16 Vict. c. 65; 16 & 17 Vict. c. 123; 17 & 18 Vict. c. 101. (t) Stat. 18 & 19 Vict. c. 63, amended by stats. 21 & 22 Vict. c. 101, and 23 A 24 Vict, c. 58. ,(X) Stat. 18 & 19 Vict. c. 63, g. 26. A transcript of the rules was formerly required to be enrolled with the clerk of the peace. Stat. 4 & 5 Will. IV, c. 40, s. 4. 302 OF INCORPOREAL PERSONAL rROPERTT. of friendly societies sliall not grant any certificate to any society assuring to any member thereof a certain annuity or superannua- tion, deferred or immediate, unless the table of contributions payable for such kind of assurance shall have been certified un- der the hand of the actuary to the commissioners for the reduc- tion of the national debt, or by an actuary to some life assurance company in London, Edinburgh, or Dublin, who shall have exer- cised the profession of actuary for at least five years.(^) On the death or removal of any trustee of one of these societies, the wliole property of the society vests in the succeeding trustee for the same estate and interest as the former trustee had therein, and subject to the same trusts, without any assignment or con- veyance whatever, except the transfer of stock and securities in the public funds.(w) And on the death, bankruptcy, or insolvency of any officer of any such society, or on any execution issuing against him, or on his making any assignment or conveyance for the benefit of his creditors, the money or effects in his hands be- longing to the society are to be paid over and ^delivered *- -'to the society before any other of his debts are paid.(7?) Acts of Parliament have been passed to legalize the formation of industrial and provident societies for carrying on trades or handi- crafts in common, (o) and many of the provisions which relate to friendly societies apply also to these institution8.(p) Loan socie- ties are regulated by another act of Parliament, which, after having been long periodically continued, is now made perpet- ual. (^) Other acts of Parliament have recently been passed for the regulation of savings banks ;(r)^ and particularly the establish- ment of savings banks in connection with the post-ofiice,(5) — banks which, having the security of a government guarantee, are a great boon to the poorer classes. (/) Stat. 18 & 19 Vict. c. 6.3, s. 26. (ot) Sect. 18. (?/.) Stat. 18 & 19 Vict. c. 6.3, s. 23. (o) Stat. 15 & 16 Vict. c. 31, amended by stat?. 17 & 18 Vict. c. 25, and 19 & 20 Vict. c. 40 ; repealed and consolidated by stat. 25 & 26 Vict. c. 87. (;») Stat. 25 & 26 Vict. c. 87, s. 15. (y) Stat. 3 & 4 Vict. c. 100, made perpetual by stat. 26 & 27 Vict. c. 56. {,) Stat. 26 & 27 Vict. c. 87. (s) Stats. 24 Vict. c. 14, 26 Vict. c. 14. 1 For statutory regulations resembling peeting Savings Institutions and Loan Com- those spoken of in the text, see the acts re- panics; Purd. Dig. (1861), p. 106. OF PERSONAL ANNUITIES, STOCKS, AND SHARES. 303 An act of Parliament also exists for the regulation of benefit building societies.(i')i Tlie funds of these societies are raised by monthly contributions of the members, which must not exceed 20s. per share, and by fines for non-payment. The shares must not exceed the value of 150^. each; but any member may hold more than one share, (u) When the amount of the shares has been realized, the money is divided amongst the members, and the society is dissolved. Such members, however, as may wish to buy land or to build, may receive the amount of their shares in advance on payment of an additional subscription by way of interest, and also on payment of a bonus for the advance, p2l21 *which of course is deducted from the amount of the share advanced. This bonus is usually determined by competi- tion amongst the members, the shares to be paid in advance being put up by auction by the society; and the subscriptions and fines to become due in respect of the advanced shares are then secured to the society by the purchasers, by mortgage of land or houses of suificient value.(2;) These mortgages are not liable to stamp duty;(^) they were also exempt from any of the forfeitures or penalties formerly in force against usury ;(z/ and a receipt for (t) Stat. 6 A 7 Will. IV, c. 32. («) Morrison v. Glover, 4 Ex. Rep. 430. (.r) See Mosley v. Baker, 6 Hare, 87; 3 De Gex, M. & G. 1032; Doe d. Morrison v. Glover, 15 Q. B. 103, E. C. L. R. vol. 69 ; Seagrave v. Pope, 1 De Gex, Mac. & Gord. 783 ; Fleming v. Self, 1 Kay, 518 ; 3 De Gex, Mac. & Gord. 997 ; Farmer v. Smith, 4 H. & N. 196 ; Sparrow v. Farmer, 26 Beav. 511 ; Smith v. Pilkington, 1 De Gex, F. & J. 120. (y) Walker v. Giles, 6 C. B. 662, E. C. L. R. vol. 60 ; Williams v. Hayward, 22 Beav. 220. (z) Stat. 6 & 7 Will. IV, c. 32, s. 2. ' An act of the lejrislature of Pennsylva- visions are extended to Montgomery County. nia, passed the 22d day of April, 1850, em- By the act of the 21st of April, 1852. they powers, "any number of per.sons, citizens of are extended to Delaware County ; and by the city and county of Philadelphia, and the the act of the 14th of April, 1853, they are counties of Schuylkill and Berks," "who extended to Alleghany County ; and by sub- are associated, or who mean to associate" sequent statutes, the act is still further ex- "for the purpose of forming mutual savings tended; Purd. Dig. (1861), p. 129. fund, land and building a.ssociations," to ^ But such a provision, will not exonerate make application for incorporation " to the all contracts made by such associations with Court of Common Pleas of the proper county, their members, from the operation of the in which said corporation or body politic in statute relating to usury ; Savings Bk. v. law, is intended to be situated ;" and the said Wilcox, 24 Conn. R. 147. In Pennsylvania courts are thereby authorized to incorporate it has been held, that building associations the said a.ssociations, under the stipulations cannot recover on their mortgage loans, more and provisos therein mentioned. By an act than the .sum loaned, with the actual interest of the 3d of April, 1851, the above pro- thereon; Ilouser v. Hermann Building Ass., 304 OF INCORPOREAL PERSONAL PROPERTY. the moneys secured, indorsed by tlie trustees of the society upon any such mortgage, vests the estate comprised in the security in the person entitled to the equity of redemption, without any re- conveyance.(«) Under cover of the Buikling Societies Act, many societies called freehold land societies have been established for the purpose of buying freehold land and selling it again in lots to the diftercnt members; but these societies are not within the scope of the building and friendly societies acts, and can only be certified as such by the concealment of their real object.(6) An act has also been passed for facilitating the erection of dwelling-houses for the laboring classes,(c) under which any number of persons, not less than six, may by subscribing articles of association form themselves into a company for the purposes of the act. The *articles are to be in a given form, and L -I to be registered by the registrar of joint stock companies. And the Companies Clauses Consolidation Act, 1845, is incor- porated into the act, the articles of association being deemed the special act. The provisions above referred to for charging the stock of any debtor with the payment of any judgment deht,{d) extend to stock and shares in any public company in England, whether in- corporated or not.(t') The prerogative of the crown in the grant of letters-patent is frequently exercised not only for the incorporation of joint stock companies, but also for conferring on private individuals certain exclusive rights and privileges. These rights, c&Wed patents from the letters-patent which confer them, will be considered in the next chapter. (a) Sect. 5 ; Prosser v. Price, 28 Beav. 68. (r) Stat. 18 & 19 Vict. c. 132. (i) See Grimes v. Harrison, 2fi Beav. 435. (d) Atite, p. 188. {e) Stnt. 1 & 2 Vict. c. 110, s. 14. See Nicholls v. Rosewarne, 6 C. B. N. S. 480, E. C. L. R. vol. 95. 4:1 Pa. Sf. R. 478 ; Denny v. West Phil'a miums taken by the said associations should Ass., 39 Id. 154 ; Reiser v. Saving Fund, Id. not be deemed usurious. 137 ; and this judgment has been reiterated See also further on the subject of building in McGrath v. Hamilton Savings and Loan associations, the following decisions support- Ass., 44 Pa. St. R. 385, decided subsequently ing the doctrine stated in the text ; Pomeroy to the act of 1859, in the eighth section of v. Ainsworth, 22 Barb. R. 118 ; Citizens' which it is declared, that the true intent and Mutual Loan Ass. v. Webster, 25 Id. 263 ; meaning of the acts of the legislature, in re- West Winsted Saving Bk. v. Ford, 27 Conn, iation to building associations is, that pre- R. 282. OF PATENTS AND COPYRIGHTS. 305 *CHAPTER*II. [*214] OF PATENTS AND COPYRIGHTS. A PATENT is the name usually given to a grant from the crown, by letters-patent, of the exclusive privilege of making, using, exercising and vending some new invention. The granting of such letters-patent is an ancient prerogative of the crown, a prero- gative which remains unaffected by the Patent Law Amendment Act, 1852.(«) In the reign of Queen Elizabeth this prerogative was stretched far beyond its due limits, and the monopolies thus created formed one of the grievances which King James,, her successor, was at last obliged to remedy. Accordingly by a statute passed in the twenty-first year of his reign, and com- monly called the Statute of Monopolies, (6) it was declared and enacted that all such monopolies were altogether contrary to the laws of this realm, and so were and should be utterly void and of none effect, and in nowise put in ure or execution. In this statute, however, there are certain exceptions, and particularly one on which the modern law with respect to patents may be said to be founded. This exception is as follows: "Provided also and be it declared and enacted, that any declaration before mentioned shall not extend to any letters-patent and grants of privilege for the term of fourteen years or under, hereafter to be made, of the sole working or making of any manner of new manufactures within this realm, to the true amd first inventor and inventors of such manufactures, which others at the time of making such letters-patent and *grant8 shall not use, so ^^^^ ... also they be not contrary to the law nor mischievous to "- "^ the state, by raising prices of commodities at home, or hurt of trade, or generally inconvenient; the said fourteen years to be accounted from the date of the first letters-patent or grant of such privilege hereafter to be made; but that the same shall be (o) Stat. 15 & IG Vict. c. 8.3 ; see .sect. 16. (4) Stat. 21 .lac. I, c. 3, 20 306 OF INCORrOREAL PERSONAL PROPERTY. of sncli force as tliey should be if this act had never been made, and of none other, "(t^) It will be seen that the granting of letters-patent is not ex- pressly warranted by this statute; but that it merely reserves to such letters-patent as fall within the terms of the exception, such force as they should have had if the act had never been made, and none other force. As, however, all grants of exclusive priv- ilege by letters-patent, which do not fall within this exception and some others of little importance, are now rendered void by the statute, the construction of this exception has become a mat- ter of great practical importance. And first, the term must be fourteen years from the date of the letters-patent, or under; and the full term of fourteen years is usually granted. But it is now provided, that all letters-patent for inventions, granted under the provisions of the Patent Law Amendment Act, 1852, shall be made subject to the condition that the same shall be void, and that the powers and privileges thereby granted shall cease, at the expiration of three and seven years respectively from tlie date thereof, unless there be paid before the expiration of the said three and seven yeara respectively certain stamp duties mentioned in the act, namely, 50/. stamp dutj^ before the expiration of the third year, and 100/. stamp duty before the expiration of the seventh year.((/) These payments appear high, but they are a great improvement on the old law, under which heavy fees and r*9in ^u^y w^^'^ payable on taking out every ^patent; whereas now, if a patent prove useless, it may be discontinued, and the payment saved. By a modern act of Parliament,(e) a prolongation of the term granted by the original letters-patent may be granted_^ either to the original grantor or to his as- signee,(/) for a term not exceeding seven years after the expira- tion of the first term, in case the judicial committee of the privy council shall, upon proper application, report to her majesty, that such further extension of the term should be granted. And if (c) Stat. 21 Jac. I, c. 3, s. 6. {(l) Stat. 16 & 17 Vict. c. 5, s. 2 ; Williams v. Frost, 28 Beav. 93. («) Stat. 5 & 6 Will. IV, e. 83, s. 4, amended by 2 & 3 Vict. c. 67 ; and extended by stats. 15 & 16 Vict. c. 83, s. 40, and 16 & 17 Vict. c. 116, s. 7. (/) Russell V. Ledsam, 14 Mee. & Wels. 574; affirmed, 16 M. k W. 633 ; 1 H. of L. Gas. 687. OF PATENTS AND COPYRIGHTS. 307 sucli further period of seven years can be shown to be insuiRcient for the reimbursement and remuneration of the expense and labor incurred in perfecting the invention, then, by a subsequent stat- ute, (^) the crown may grant to the inventor, or his assignee, an extension of the patent for any time not exceeding fourteen years/ ig) Stat. 7 & 8 Vict. c. 69, ss. 2, 4, continued by stats. 15 & 16 Vict. c. 83, s. 40, and 16 & 17 Vict. c. 115, s. 7. 1 The acts of Congress in relation to pa- shall issue, shall not exceed fourteen years tents, which had been enacted prior to the from the time when the patent issued in the 4th of July, 1836, were repealed by the last foreign country. section of the act approved on that day. The third section of the act of August 29, This act, and the subsequent enactments on 1842, provides, that citizens, or aliens who the same subject, constitute the present pa- have resided one year in the United States, tent law of the United States. The sixth and taken oath of their intention to become section of the act of the 4th of July, 1836 citizens, may have a patent, upon payment (5 Stats, at Large, 117), points out the man- of one-half of the fee heretofore required, ner in which application is to be made for a "who have invented or produced any new patent, by an inventor or inventors, for "any and original design, for the manufacture, new and useful art, machine, manufacture, whether of metal, or other material, or ma- or composition of matter, or any new and terials, or any new and original design for useful improvement on any art, machine, the printing of woollen, silk, cotton, or other manufacture, or composition of matter, not fabrics, or any new and original design for a known or used by others, before his or their bust, statue or bas-relief, or composition in discovery or invention thereof, and not, at alto, or basso relievo, and any new or original the time of his application for a patent, in impression or ornament, or to be placed on public use, or on sale, with his consent or any article of manufacture, the same being allowance, as the inventor or discoverer." formed in marble or other material, or any By the ninth section of the same act, thirty new and useful pattern or print, or picture, dollars is to be paid by "a citizen of the to be either worked into, or worked on, or United States, or an alien'' who " shall have printed, or painted, or cast, or otherwise fixed been resident in the United States for one on, any article of manufacture, or any new year next preceding, and shall have made and original shape or configuration, of any oath of his intention to become a citizen article of manufacture, not known or used thereof," at the time of making application by others." The term for which the patent for a patent ; but if the inventor is a subject is granted in this case, is seven years. of the King of Great Britain, the sum to be The fifth section of the act of July 4, 1836, paid is five hundred dollars ; and in all other authorizes patents to issue for the term of cafses three hundred dollars. fourteen years ; and the eighteenth section By the sixth section of the act of March of the same act provides, that after the ex- 3, 1839 (5 Statutes at Largo, 353), it is en- piration of the said term of fourteen years, acted, that no person shall be debarred from the patent may be renewed for the term of receiving a patent, " by reason of the same seven years; but the application for renewal having been patented in a foreign country, must be made, before the term of fourteen more than six months prior to his applica- years is expired. lion, provided, that the same .shall not have By the eleventh section of the act of the been introduced into public and common use 2d of March. 1861 (12 Stats, at Large, 246), in the United States, prior to the application a patent may be granted for the terra of for such patent;" and therein it is also pro- three and a half years, or for seven, or four- vided, that the term for which the patent teen years, as the applicant may elect to 308 OF INCORPOREAL PERSONAL PROPERTY. Secondly, the patent must be for "new maunfactures within this realm, which others at the time of making such letters-patent " any citizen or citizens, or alien or aliens, having resided one year in the United States, and taken the oath of his or their intention to become a citizen or citizens, who by his, her or their own industry, genius, efforts, and expense, may have invented or produced any new and original design, or a manufacture, whether of metal or other material or mate- rials, an original design for a bust, statue, or has relief, or composition in alto or basso re- lievo, or any new and original impression or ornament, or to be placed on any article of manufacture, or any new and original shape or configuration, of any article of manufac- ture, not known or used by others, before his, her or their invention or production there- of." The fees to be paid under this act, are in proportion to the term of the patent, to wife, ten dollars for three years and six months, fifteen dollars for seven years, and thirty dollars for fourteen years. And by the sixteenth section of the same act, "All patents hereafter granted, shall re- main in force for the term of seventeen years from the date of issue ; and all extension of such patents, is hereby prohibited." In the case of Child v. Adams et al., de- cided in the Circuit .Court of the United States for the Eastern District of Pennsyl- vania, in November, 1854, and unreport- ed, in which a question arose, relative to a mistake made by an alien in obtaining a patent, who paid only the fees due by a citi- zen of ihe United States, under the impres- sion that no more was demandable from him, when in fact he was a citizen of France, and as such should have paid greater sums ; Grier, J., uses the following language : "The original letters-patent to J. G. Mini, for his 'improvement in making lampblack,' were is.^ued on the 13th of November, 1844, and recited that Mini ' has made oath that he is a citizen of the United States,' &c., and 'paid the sum of thirty dollars,' &c. On this patent, the complainant, as assignee of Mini, filed his bill to April Term, 1850, against the respondents, alleging an infringement, and praying for an injunction. Among other matters of defence pleaded in the respond- ent's answer, it was averred, that 'J. G-. Mini, was not entitled to said patent at the time it was gr.nnted to him, because he was an alien, being a native of France, and not a naturalized citizen of the United States ; and that he had applied for, and obtained the said letters-patent, as a citizen of the United States, for the purpose of defrauding the revenue of the additional fees and charges, which, as an alien, he should have paid in order to obtain a patent.' " ***** " When a statute defines the extent of power given to one who acts ministerially, the court cannot extend it, or validate acts done without or beyond its authority. I would not be considered as imputing any moral guilt to Mr. Mini, or intent to commit per- jurj', in his particular case. It is possible that men m;ij'live thirty years in this country, and not know that in order to become a citizen, an alien must be naturalized. It is possible too, that an alien dragged to the polls " by respectable gentlemen,'' and permitted to vote by a complaisant inspector, without question, may fancy himself to have been thus trans- muted into a citizen. But instances of such amiable ignorance are so rare, that it could hardly be expected, that legislatures should anticipate it, by providing a remedy for those whose mistakes are the consequence of it. Nor will the hardship of this particular case, justify the commissioner of patents in assum- ing a power not granted to him by the stat- ute. He has no power to confirm a patent obtained by a false suggestion, either by par- doning the offence, or excusing it, on the plea of innocent ignorance. A mistake or inad- vertence in the specification of a patent, can be proved by the face of the paper, and the reason alleged for it. But where a person makes a mistake in his oath of citizenship, and enjoys the benefits of it for more than half his term, his innocence can be proved by his own oath alone, and he ought not to be allowed to obtain a new patent, for the other half, bj' stultifying himself. This would be holding out a premium for profitable mis- takes, and an encouragement to double per- jury.' OF PATENTS AND COPYRIGHTS. 309 and grrants shall not use." The use here mentioned has been held to mean a use in public; if therefore the invention, for which the patent is sought to be obtained, has been previously used in public within the realm, the patent will be void.(A) And the realm in this statute has been determined to mean the United Kingdom of Great Britain and Ireland ; so that when separate letters-patent w^ere granted for England and Scotland, if any invention had been publicly known or practised in England, a patent for Scotland was void.(i) *By an act of Parlia- r^j^n-iiT-i ment to which we have before referred, it is, however, '- ^ provided that letters-patent may be Qoniirmed, or new ones granted, for any invention or supposed invention, which shall have been found by the verdict of a jury, or discovered by the patentee or his assigns, to have been either wholly or in part invented or used before, if the judicial committee of the privy council, upon examining the matter, shall be satistied that the patentee believed himself to be the first and original inventor, and that such invention, or part thereof, had not been publicly and generally used before the date of the first letters-patent.(A) It is also now provided by the Patent Law Amendment Act, 1852, that any invention may be used and published for six months from the date of the application for letters-patent for the invention, without prejudice to the letters-patent, provided the provisional specification, which describes the nature of the invention, and is to accompany the petition for the letters-patent, be allowed by the proper law officer. (^) It is also provided that the applicant, instead of having a provisional specification, may, if he think fit, file a complete specification under his hand and seal, particularly describing and ascertaining the nature of his invention, and in what manner the same is to be performed, in which case the in- vention will be protected for six months from the date of the application, and may be used and published without prejudice to any letters-patent to be granted for the same.(m)* It is also pro- (//) Lewis V. Marling, 10 Barn. & Cress. 22, E. C. L. R. vol. 21 ; Carpenter v. Smith, 9 M. k W. 300 ; Re Newall, 4 C. B. N. S. 2fi9, E. C. L. R. vol. 93. (2.') Brown v. Annandale, 8 CI. & Fin. 214. {/.) Stat. 5 & 6 Will. IV, c. 83, s. 2. (/) Stat. 15 & 16 Vict. c. 83, s. 8 ; Re Newall, 4 C. B. N. S. 269, E. 0. L. R. vol. 93. (»0 Sect. 9. See also stat. 16 & 17 Vict. c. 116, s. 6. ^ By the twelfth section, of the act of the wherever further time may be desired to ma- 4th of July, 1836 (5 Stats, at Large, 121), lure an invention, it may be lawful to file in 310 OF INCORPOREAL PERSONAL PROPERTY. vided, that if any application for letters-patent be made in fraud of the true and tirst inventor, any letters-patent granted to the true and tirst inventor shall not be invalidated by reason of any use or ^publication of the invention subsequent to such •■ ^ application, and before the expiration of the term of pro- tection. (?;) Thirdly, a patent must be granted "to the true and first inven- tor and inventors." If, therefore, the original inventor should sell his secret to another person, such person cannot obtain letters-patent for the invention in his ov^^n name; but the original inventor must obtain th6 letters-patent, and then assign them to the other. If two persons should both make the same discovery, he who first publishes it by obtaining a patent for it, will be the true and first inventor within the meaning of the statute, although he may not actually have been the first to make the discovery. (o) But a person cannot obtain a patent for an inven- tion which has been communicated to him by another within the realm. (2;) If, however, a person should be in possession of an invention communicated to him from abroad, such person, if he be the first introducer of the invention into this country, is regarded by the law as the true and first inventor thereof within the meaning of the statute of .James;(r/) and it is no objection that the patent is taken out in trust merely for the foreign in- ventor, (r) But it is now provided that where letters-patent are granted in the United Kingdom for any invention first invented in any foreign country, or by the subject of any foreign state, and a like privilege for the exclusive use or exercise of such invention in any foreign country is there obtained before the (n) Stat. 15 & 16 Vict. c. 83, s. 10. (o) Bnulton V. Bull, 2 H. Black. 487. {}>) Hill V. Thompson, 8 Taunt. 395, E. C. L. R. vol. 4; S. C. 2 J. B. Moore, 452. (q) Erlgeberry v. Stephens, 2 Salk. 447. (r) Reard v. Egerton, 3 C. B. 97, 129, E. C. L. R. vol. 54. the Patent Office, a caveat, praying protectiou The filing of a caveat is not however neces- of the right until the invention is matured ; sary for the preservation of the right, but whereupon, on application for a patent made merely enables the inventor to receive notice within one year after filing the caveat, by of any interfering application ; Hildreth v. any other person, for a patent for an inven- Heath, Cranch's Patent Decs. 101. tion which may in any way interfere, notice will be given to the person who has filed the caveat, of such application. OF PATENTS AND COPYRIGHTS. 311 grant of sncli letters-patent in the United Kingdom, all riglits and privileges under such letters-patent shall (notwithstanding any term in such letters-patent limited) cease and be void im- mediately upon the expiration or other determination of the term of the like privilege obtained in such foreign *country; r-^9-|q-, or where more than one such like privilege is obtained abroad, immediately upon the expiration or determination of the term of such privileges which shall first expire or be determined. And no letters-patent granted for any invention, for which any patent or like privilege shall have been obtained in any foreign country, shall be of any validity, if granted after the expiration of the term for which the foreign patent or privilege was in force. (-s) The remaining restrictions imposed by the act of James I require no comment. The granting of letters-patent is, as has been observed, a prerogative of the crown; and although a patent may now be always obtained for any new invention, yet the grant is still a matter of favor and not of right, and all grants of letters-patent for inventions are at the present day clogged with certain con- ditions. Of these conditions, the most important is that which requires the inventor particularly to describe and ascertain the nature of his invention, and in what manner the same is to be performed, by an instrument in writing under his hand and seal, called the specification, and to cause the same to be filed in the High Court of Chancery within a given period, generally six calendar months from the date.(^) This instrument was formerly required to be enrolled instead of being merely filed as at pre- sent. And it is provided by the new act that, if a complete specification be filed along with the petition for the letters-patent, then, in lieu of a condition for making void the letters-patent in case the invention be not described and ascertained by a subse- quent specification, the letters-patent shall be conditioned to become void, if such complete specification filed as aforesaid does not particularly describe and ascertain the nature *of r^oc)Q-^ the invention, and in what manner the same is to be per- (s) Stat. 15 & 16 Vict. c. 83, s. 2.'). (0 Ibid. 8. 27. See stat. 16 & 17 Vict. c. 115, s. 6. A.s to munitions of war, fee stat. 1'2 Vict. c. 13. 312 OF INCORPOREAL PERSONAL PROPERTY. formed. (?<) The object of requiring a specification is to secure to the public the benefit of the knowledge of the invention after the term granted by the patent shall have expired. The framing of the specification is a matter of great nicety; for the description contained in it must correspond with the title of the invention contained in the letters-patent,(?') and must clearly describe the invention,(a:) neither covering more than the proper subject of the patent,(^) nor omitting anything necessary to make the de- scription intelligible. (x) Provision, however, has been made by an act of Parliament before referred to,{a) for enabling the grantee or assignee of any letters-patent to enter a disclaimer of any part, either of the title of the invention, or of the specifica- tion, statinor the reason of such disclamer, or to enter a memor- andum of any alteration in the title or specification, not being such disclaimer or such alteration as shall extend the exclusive right granted by the patent.' Under these provisions, letters- patent originally void may in many cases be rendered valid from the time of the entry of the disclaimer or alteration. (6) And these provisions have been extended to letters-patent granted and specifications filed under the Patent Law Amendment Act, 1852. (c) This act also provides for the printing, publishing and (?/) Stat. 15 & 16 Vict. c. 83, s. 9. {v) Rex'v. Wheeler, 2 Barn. & Aid. 345, 350. See Nickels v. Haslam, 7 Man. & Cran. 378, E. C. L. R. vol. 49 ; Beard v. Egerton, 3 C. B. 97, E.G. L. R. vol. 64. (x) Bloxham v. Elsee, 6 Barn. & Cres. 169, E. C. L. R. vol. 13. {y) Hill V. Thomp,«on, 3 Meriv. 629. {z) Rex V. Wheeler, nbi supra; Neilson v. Harford, 8 Mee. & Wels. 805. (a) Stat. 6 & 6 Will. IV, c. 83, s. 1. See, also, stat. 7 & 8 Vict. c. 69, S3. 5, 6. (A) Perry v. Skinner, 2 M. & W. 471. (c) Stat. 15 & 16 Vict. c. 83, s. 39. 1 A provision entirely similar, is contained interest in such patent. . . . And such in the seventh section, of the act of Congress disclaimer shall thereafter be taken and con- of the 3d of March, 1837, which sets forth, sidered as part of the original specification, that "whenever any patentee shall have, to the extent of the interest which shall be through inadvertence, accident, or mistake, possessed in the patent, or right secured made his speciiication of claim too broad, thereby by the disclaimant." claiming more than that of which he was the On the subject of disclaimer, see the follow- original or first inventor, some material and ing authorities: O'Reilly et al. v. Morse et substantial part of the thing patented being al., 15 How. R. 63 ; Whitney et al. v. Emmett truly and justly his own. any such patentee et al., 1 Baldw. R. 303 ; Wyeth et al. v. Stone . . . may make disclaimer of such parts of et al., 1 Story's R. 273 ; Reed v. Cutter et the thing patented, as the disclaimant shall al.. Id. 590 ; Hall v. Wiles, 2 Blatch. Ct. Ct. not claim to hold by virtue of the patent or R. ]94 ; Silsby v. Foot, 20 How. U. S. R. 378. assignment stating therein the extent of his OF PATENTS AND COPYRIGHTS. 313 sale, under the direction of the commissioners of patents, of all specifications, disclaimers, and memoranda of alterations deposi- ted or filed *under the act.(cZ) A "register of patents" is p^,^,-,-.-, also directed to be kept, where shall be entered and re- corded, in chronological order, all letters-patent granted under the act, the deposit or filing of specifications, disclaimers and memoranda of alterations filed in respect of such letters-patent, all amendments in such letters-patent and specifications, all con- firmations and extensions of such letters-patent, the expiry, vacating, or cancelling of such letters-patent, with the dates thereof respectively, and all other matters and things effecting the validity of such letters-patent as the commissioners may direct; and such register, or a copy thereof, is to be open at all convenient times to the inspection of the public, subject to such regulations as the commissioners may make.(c) Another condition formerly inserted in letters-patent rendered them void, in case the letters-patent, or the liberty and privileges thereby granted, should become vested in or in trust for more than the number of twelve persons, or their representatives, at any one time, as partners, dividing or entitled to divide the bene- *fit or profit obtained by reason thereof; but it is now enacted that, notwithstanding any proviso that may exist in former letters- patent, it shall be lawful for a larger number than twelve persons hereafter to have a legal and* beneficial interest in such letters- patent. (/) In letters-patent a clause is usually contained forbidding all persons from using the invention without the consent, license, or agreement of the inventor, his executors, administrators, or as- sig-ns, in writino-, under his or their hands and seals, first had and obtained in that behalf.(^) The granting of licenses to use a pat- ent is *one of the most profitable ways of turning it to n^.-,,-,,^-. account. All licenses are now required to be registered in ^ -^ the registry to be presently mentioned. Letters-patent obtained in England formerly conferred an ex- {fl) Sect. 29. W Sect. 34. (/) Sect. 30. See post, the chiipter on Joint Ownership and Joint Liability. (A') See tie form of Letters-Patent, in Appcndi.x (A). 314 OF INCORPOREAL PERSONAL PROPERTY. elusive privilege only within England, Wales, and the town of Berwick-upon-Tweed; and also within the islands of Guernse}', Jersey, Alderney, Sark, and Man, and her majesty's colonies and plantations ahroad, if so expressed in the patent. In order to ob- tain the like exclusive privilege for Scotland, it was necessary to obtain separate letters-patent under the seal appointed by the treaty of union to be used instead of the great seal of Scotland ; and in the same manner the like privilege for Ireland was re- quired to be obtained by letters-patent under the great seal for Ireland. But it is now provided that letters-patent shall extend to the whole of the United Kingdom of Great Britain and Ireland, the channel islands, and the Isle of Man ; and in case the warrant for granting the patent shall so direct, such letters-patent shall be made applicable to her majesty's colonies and plantations abroad, or such of them as may be mentioned in such warrant.(A) But where separate letters for England, Scotland, or Ireland have been already granted, separate letters-patent may still be granted for the other countries, on payment for such country of one-third the stamp duties payable for a patent for the whole kingdom. (i) Letters-patent and the privileges thereby granted are freely assignable from one person to another, and the assignee by such* assignment is placed in the same position as his assignor pre- viously stood.* The assignee may consequently bring in his own (A) Stat. 15 & 16 Vict. o. 83, s. 18. (») Stat. 16 & 17 Vict. c. 5, s. 4. 1 See acts of Congress of the 4th of July, of the thing patented, at the time of the re- 1836, sec. 11, and of the 3d of March, 1837, newal, has still a right to use it ; Wilson v. sec. 6. Rousseau et al., 4 How. R. 646 ; Wilson v. An assignment of a patent right may be Simpson et al., 9 Id. 109 ; Bloomer v. Mc- made before the issuing of a patent ; Gayler Quewan, 14 Id. 539 ; Bloomer v. Millenger, et al. V. Wilder, 10 How. R. 477 ; and the 1 Wallace's R. 340 ; Chaffee v. Boston Belt- assignee, in all cases taking subject to the ing Co., 22 How. U. S. R. 217. legal consequences of the previous acts of the A covenant by a patentee, made prior to assignor (McClurg v. Kingsland et al., 1 the law authorizing extensions, that the How. R. 202). may maintain nn action in his covenantee should have the benefit of any own name ; Brooks et al. v. Bicknell etal., 3 improvement, or alteration, or renewal of the McLean's R. 250 ; but the assignment must patent, does not include the extension ob- be in writing ; Gibson v. Cook, 2 Blatch. C. tained by an administrator under the act of C. R. 144 ; an extension of a patent, procured 1836, but only the renewal obtained upon a by the executor or administrator of the in- surrender of the patent, on account of a defec- ventor, does not enure to the benefit of the tive specification ; Wilson v. Rousseau et al., assignees ; Wilson v. Rousseau et al., 4 How. 4 How. R. 646 ; and a covenant, by which a R. 646 ; but, an assignee who was in the use licensee will become entitled to an extension OF PATENTS AND COPYRIGHTS. olo n^me the same actions and suits both at law and in equity against those *who have infringed upon the patent as the patentee ^^^990-1 himself might have done,(^) The privileges granted bj *- letters-patent are therefore plainly an instance of an incorporeal kind of personal property, different in its nature from a mere chose in action, which never has been assignable at law. A deed is said to be necessary for the valid legal assignment of letters- patent; but the author is not aware of any authority for this position ; and the general rule appears to be, that the assignment of incorporeal f)ersonal property may be made without deed. Perhaps, however, the necessity of an assignment by deed may be implied from the clause in the letters-patent, which forbids the use of the invention " without the consent, license, or agree- ment of the inventor, his executors, administrators, or assigns, in writing, under his or their hands and seals, first had and obtained in that behalf." All assignments of letters-patent are now re- quired to be registered under the Patent Law Amendment Act, 1852.^ The act provides that there shall be kept at the ofhce appointed for filing specifications in chancery under this act, a book or books entitled " The Register of Proprietors," wherein shall be entered, in such manner as the commissioners shall direct, the assignment of any letters-patent, or of any share or interest therein, any license under letters-patent, and the district to which such license relates, with the name or names of any person having any share or interest in such letters-patent or license, the date of ik) Godson on Patents, 237. Walton v. Lavater, 8 C. B. N. S. 162, E. C. L. R. vol. 98. under the act of 1836, will not entitle hina to with, or application to, one class of subjects, an extension under a special act ; Bloomer v. and to another, in its connection with, or ap- StoUey, 6 McLean's R. 158. plication to, another class of subjects, to such When an assignment is made under the act an extent that purchasers from any of these of Iftl'fi, of the exclusive right within a speci- persons, may not use the thing purchased Bed part of the country, the assignee may exactly as they please ; Washing Machine sue in his own name, provided the assignment Co. v. Earle, 3 Wallace, Jr. R. be of the entire and unqualified monopoly; i Act of Congress of 4th of July, ]83. Tatham et al., ventor ; neither acts alone, nor declarations 14 How. R. 156 ; AVashburn et al. v. Gould, alone, being sufficient to prove an abandon- OF PATENTS AND COPYRIGHTS. 317 Closely connected with the subject of patents is that of copy- ment ; McCormick v. Seymour, 2 Blatch. C. C. R. 194 ; and the mere user by the inventor of his discovery, in trying experiments, or by his neighbors, with his consent, as an act of kindness, for temporary and occasional pur- poses only, will not destroy the right of the discoverer to a patent ; Wj-eth et al. v. Stone et al., 1 Story's R. 27.3; Winans v. Schenec- tady and Troy Railroad Company, 2 Blatch. C. C. R. 229; nor experiments made by an- other, although those experiments led to the invention subsequently patented; Allen v. Hunter, 6 McLean's R. 303 ; but the use of several machines in public, for more than two years prior to applying for a patent, slightly varying in form and arrangement, yet sub- stantially the same as afterwards patented, cannot be alleged as experimental, so as to avoid the consequences of such prior use ; Sanders v. Logan et al., 9 Am. L. Reg. 476 ; so, too, the inventor will not be deprived of his patent, where the knowledge of the dis- covery is surreptitiously obtained and com- municated to the public ; Shaw v. Cooper, 7 Pet. R. 292 ; Whitney et al. v. Emmett et al., ] Baldw. R. 303 ; Ryan et al. v. Goodwin et al., 3 Sumn. R. 514 ; and in like manner, any intermediate knowledge or use, between the time of discovery and the application for a patent, by a subsequent inventor, will not deprive the original discoverer of his right to a patent, who is during that time perfecting his invention, or using due diligence to secure his patent ; Whitney et al. v. Emmett et al., 1 Baldw. R. 303 ; Morris v. Huntington, 1 Paine's C. C. R 348; Reed v. Cutter et al., 1 Story's R. 590; nor, on the other hand, will the idea of the discovery, though it has oc- curred to others, deprive the invention of its originality, unless the idea had been embodied in a practical form; Teese v. Phelps, 1 McAll. C. C. R. 48. A previous discovery in a foreign country, will not render a patent obtained here void, unless such discovery had been patented, or described in a printed publication; O'Reilly et al. V. Morse et al., 15 How. R. 03 ; Brooks et al. V. Bicknell et al., 3 McLean's R. 250. If a machine produce several different ef- fects by a particular combination of machin- ery, and these effects are produced in the same way in another machine, and a new effect added, the inventor of the latter is not entitled to a patent for the whole of the machine, but merely for the improvement; Whittemore et al. v. Cutter, 1 Gall. R. 478; Odwine v. Winkley, 2 Id. 51 ; Barrett et al. V. Hall et al., 1 Mas. R. 447 ; Goodyear v. Matthews, 1 Paine's C. C. R. 300 ; and for each improvement of a machine, there must be a separate patent; Barrett et al. v. Hall et al., 1 Mas. R. 447; McCormick v. Taleott, 20 How. U. S. R. 402 ; and a claim for a com- bination of several devices, so as to produce a particular result, is not good for a claim for any mode of combining those devices; Case V. Brown, 2 Wallace's R 320 ; Burr v. Duryee 1 Id. 531. The description contained in the specifica- tion, must be so clear, that any one skilled in the art to which it appertains, may compound or use the thing patented, without making ex- periments ; Wood V. Underbill, 5 How. R. 1 ; Gray et al. v. James et al., 1 Pet. C. C. R. 394. In the case of Lowell v. Lewis, 1 Mas. R. 182, however, it was decided, that if the invention be definitely described in the pat- ent, so as to distinguish it from what is be- fore known, the patent will be good, though the specification does not describe the inven- tion, in such full, exact, and clear terms, that a person skilled in the art or science of which it is a branch, could construct or make the thing invented ; but the invention must be so clearly described, as to enable the public to appropriate it, after the expiration of the patent right; Sullivan v. Redfield et al., 1 Paine's C. C. R. 441 ; Evans «. Chambers, 2 Wash. C. C. R. 125 ; Ames v. Howard et al., 1 Sumn. R. 482. If a patent has been granted upon a speci- fication defective by reason of its obscurity, the i)roper course is to surrender the patent and take out a new one ; Stimpson v. The West Chesler R. R. Co., 4 How. R. 380 ; Wilson V. Rousseau et al.. Id. 646 ; Odwine V. The Amesbury Nail Factory, 2 Mas. R. 28 ; and the second patent will be considered as emanating, at the time the first was granted; Shaw v. Cooper, 7 Pet. R. 292; Morris v. Huntington, 1 Paine's C. C. R. 348 ; Grant et al. v. Raymond, f) Pet. R. 318 OF IXCOIU'OKEAL PERSONAL PROPERTY. right.^ Copyright may be defined to be the exclusive right of 218 ; The Philadelphia and Trenton R. R. Co. invent, design, etch, engrave, work, or cause V. Stimpson, 14 Pet. R. 448; Godfrey v. to be engraved, any print or engraving, and Eanie.s, 1 Wallace's R. 317. the executor or executors of such person or If a patent includes more than the actual persons, shall have the sole right of printing, invention, it is void; Wood v. Underhill et reprinting, publishing, and vending the same, al., 5 How. R. 1 ; O'Reilly et al. v. Morse et for the term of twenty-eight years from the al., 15 Id. fi.S ; Whitney et al. v. Eramett et time of recording the title thereof; and by al., 1 Baldw. R. 303; Batten v. Taggart, 2 the second section of the same act, the ex- Wallace, Jr. R. 101; and the proper course elusive use above mentioned, may be renewed under these circumstances, is for the inventor after the expiration of the said twenty-eight to enter a disclaimer for the excess. See years, for the additional term of fourteen aute, p. 220, note. years, and if said person or persons shall be Nothing useless or frivolous, or injurious dead, then to the widow, or child, or children, to the moral health or comfort of society, can of such deceased person. The fourth and be the subject of a patent : Bedford v. Hunt fifth sections of the same act, point out the et nl., 1 Mas. R. 302; Whitney et al. v. manner in which application for a copyright Emmett et a!., 1 Baldw. R. 303; Lowell v. must be made • Lewis, 1 Mas. R. 182 ; Langdou v. De Groot, "Sect. 4. And be it further enacted. That 1 Paine's C C. R. 203 ; consequently, where no person shall be entitled to the benefit of the principle of two machines is entirely this act, unless he shall, before publication, similar, and the only difference consists, in deposit a printed copy of the title of such the latter being constructed of materials book, or books, map, chart, musical compo- better adapted to the purposes for which it sition, print, cut, or engraving, in the clerk's was made thnn the former, it was not consid- oiEce of the District Court of the district ered as entitled to a patent, not being suf- wherein the author or proprietor shall re!?ide, ficiently useful ; Hotebkiss et al. v. Green- and the clerk of said court is hereby directed wood et al., 11 How. R. 266; Stimpson v. and required, to record the same thereof foith The Baltimore and Susquehanna R. R. Co., with, in a book to be kept for that purpose, 10 Id. 343. in the words following (giving a copy of the On the subject of infringements of patents, title under the seal of the court, to the said see MeClurg et al. «. Kingslandet al., 1 How. author or proprietor, whenever he shall re R. 202 ; Gayler et al. v. Wilder, 10 Id. 477 ; quire the same): ' District of , to wit : Wilson V. Barnum, 8 Id. 258 ; Silsbee v. Be it remembered, that on the day of Foote, 14 Id. 219; Gray et al. v. James et , Anno Domini , A. B., of the al., 1 Pet. C. C. R. 394 ; Dixon v. Moyer, 4 said district, hath deposited in this ofiSce the Wash. C. C. R. 69; Sawin et al. v. Guild, 1 title of a book (map, chart, or otherwise, as Gall. R. 485; Evans v. Jordan et al., 1 the case may be), in conformity with an act Brockenb. R. 248 ; Livingston & Co. v. of Congress, entitled. An act to amend the Jones &. Co., 3 Wallace, Jr. R.; Batten v. several acts respecting copyrights. C. D., Silliman, lb.; Jones v. Morehead, 1 Wal- Clerk of the District.' For which record the lace's R 155,- Kendall v. Winsor, 21 How. clerk shall be entitled to receive, from the U. S. R. 322. person claiming such right as aforesaid, fifty 1 The acts of Congress of the 31st of May, cents ; and the like sum for every copy under 1790, and the 29th of April, 1802, are re- seal, actually given to such person or his as- pealed by the act of February 3d, 1831 ; (4 signs. And the author or proprietor of any Stat, at Large, 436). By the first section of such book, map, chart, musical composition, the last- mentioned act, any person or per- print, cut, or engraving, shall, within three sons, being a citizen or citizens of the United months from the publication of said book, States, or resident therein, who shall be the map, chart, musical composition, print, cut, author or authors of any book or books, map, or engraving, deliver, or cause to be delir- chart, or musical composition, or who shall ered, a copy of the same to the clerk of said OF PATENTS AND COPYRIGHTS. 319 multiplying copies of an original work or composition.(?7?) From the nature of this right it must almost necessarily have had its origin at a period subsequent to the invention of the art of print- ing. It is, however, the better opinion that such a right existed prior to the statute of Anne,(??.) by which the term of an author's copyright was first limited by the legi8lature,(o) But this statute, together with others by which the copyright of authors was fur- ther secured,(2>) has been repealed by the act of the present reign to amend the law of copyright, on wliich the law of copyright now depends.(^) By this act the copyright of every book (which term includes for the purposes of the act every pamphlet, sheet of letter-press, sheet of music, map, chart, or plan) published after the passing of the act in the lifetime of the author shall endure for his natural *life, and for the further term of seven r*225-] years from his death, and shall be the property of such (jn) 14 M. & W. 316. , (m) 8 Anne, c. 19. (o) Miller v. Taylor, 4 Burr. 2.303; Donaldson v. Beckett, 4 Burr. 2408; 2 Bro. P. C. 129 ; Boosey v. Jefferys, 6 Exch. Rep. 592. ip) 41 Geo. Ill, c. 107 ; 54 Geo. Ill, c. 156. (?) 5 & Vict. c. 45. district. And it shall be the duty of the clerk to the author or proprietor of any dramatic of each District Court, at least once in every composition, designed or suited for public year, to transmit a certified list of all such representation, shall be deemed and taken to records of copyright, including the titles so re- confer upon the said author or proprietor, corded; and the date of record, and also all the his heirs or assigns, along with the sole right several copies of books, or other works, de- to print and publish the said composition, posited in his office according to this act, to the the sole right also to act, perform, or repre- secretary of state, to be preserved in his office, sent the same in public, during the period for "And be it further enacted, That no per- which the copyright is obtained, son ihiiU be entitled to the benefit of this act. By the first section of the act of Congress unless he shall give information of copyright of March 3d, 1865 (13 Stats, at Large, 540), being secured, by causing to be inserted, in the provisions of the act of February 3d, the copies of each and every edition pub- 1831, are extended to photographs, and the lished during the term secured, on the title negatives thereof. page, or the page immediately following, if it And by the second and third sections of the be a book, or, if a map, chart, musical com- same act, the author or proprietor is required position, print, cut, or engraving, by causing to send a copy of his work, to the Congress to be impressed on the face thereof, or, if a library, within one mouth after publication, volume of m>ips, charts, music, or engrav- under forfeiture of his copyright, ing.i, upon the title or frontispiece thereof, See for construction of these acts, Jollin v. the following words, viz. : ' Entered according Jacques et al., 1 Blatch. R. 618 ; Wheaton et to act of Congress in the year , by al. v. Peters et al., 8 Pet. R. 591 ; Baker v. A. B., in the clerk's office of the District Taylor, 2 Blatch. C. C. R. 82. Court of ,' " (as the case may be). On the subject of the old acts of 1790 and By the first section of the act of 18th of 1802, see Nichols v. Ruggles et al., 3 Day's Augu.st, 1856 (11 Stat, at Large, 138), itispro- Conn. R. 145 ; Ewer et al. w. Coxe et al, 4 vidcd. That any copyright hereafter granted Wash. C. C. R. 478. 320 OF INCORPOREAL PERSONAL PROPERTY. author and Lis assigns; but if the term of seven years shall ex- pire before the end of forty-two years from the first publication of the book, the copyright shall in that case endure for such period of forty-two years; and the copyright in every book pub- lished after the death of its author shall endure for forty-two years from the first publication thereof.(r) By the same act the existing copyright in books then published is extended for the full term provided by the act in the case of books thereafter pub- lished. But if the copyright belong wholly or partly to a pub- lisher or other person, who has acquired it for any other consid- eration than that of natural love and affection, the copyright is not to be extended by the act, unless the author, if living, or his personal representative if he be dead, and the proprietor of such copyright, shall, before the expiration of the subsisting term of copyright, consent and agree to accept the benefits of the act, and shall register a minute of such consent in the prescribed form; in which case the cop^^right shall endure for the full term provided by the act, and shall be the property of the person or persons expressed in the minute. (5) And in order to provide against the suppression of books of importance to the public, the judicial committee of the privy council are authorized, on com- plaint made to them, that the proprietor of the copyright in any book, after the death of its author, has refused to allow its repub- lication, to grant a license to the complainant to publish the book in such manner and subject to such conditions as they may think fit.(i^) And with regard to encyclopaedias, reviews, and other periodical works, it is provided, that the copyright in every arti- r*ooci ^^^ shall belong to the proprietor of the work *for the '- *" -^ same term as is given by the act to authors of books, whenever any such article shall have been or shall be composed on the terms that the copyright therein shall belong to such pro- prietor and be paid for by him ;(m) but payment must be actually made by the proprietor before the copyright can vest in him ;{x) and after the term of twenty-eight years from the first publication of any such article, the right of publishing the same in a separate (r) Stat. 5 & 6 Vict. c. 45, s. 3. {t) Sect. 5. (s) Sect. 4. (n) See Bishop of Hereford v. Griffin, 16 Sim. 190 ; Sweet v. Benning, 16 C. B. 459, E. C. L. R. vol. 81. (x) Riehard.son v. Gilbert, ] Sim. N. S. 336. OF PATENTS AND COPYRIGHTS. 321 form shall revert to the author for the remainder of the term given by the act; and during such term of twenty-eight years the proprietor shall not publish any such article separately with- out previously obtaining the consent of the author or his assigns. But any author may reserve to himself the right to publish any such composition in a separate form, and he will then be entitled to the copyright in such composition when published separately, without prejudice to the right of the proprietor of the encyclo- psedia, review, or other periodical in which it may have first ap- peared, (y) By the same act the sole liberty of representing any dramatic piece at any place of dramatic entertainment, and of performing any musical composition in any pubhc place,(^) is secured to the author and his assigns for the same term as is pro- ^dded for the duration of copyright in books. (a) The property in dramatic works had previously been secured to the authors for a shorter period by an act of the reign of King William the Fourth.(6) It is now decided that a foreigner residing abroad is not entitled to the copyright of any work composed by him and first published in this country; but a foreigner residing in Eng- land at *the time of the first publication of his work is entitled to the copyright. ((?y ■- -^ {y) Stat. 5 & 6 Vict. c. 45, s. 18. (2) Russell V. Smith; 15 Sim. 181 ; 12 Q. B. 217, E. C. L, R. vol. 64. (a) Sect. 20. (b) 3 & 4 Will. IV, c. 15. See Morton v. Copeland, 16 C. B. 517, E. C. L. R. Vol. 81. (c) Jefferys v. Boosey, H. of Lords, 1 Jur. N. S. 615 ; 4 H. of L. Cas. 815. 1 In the recent case of Low v. Routledge, purchase-money for the manuscript and copy- as reported in the Weekly Reporter of Decern- right of the said production ; and thereupon her 2d, 1865, vol. xiv. p. 90, it was decided she signed at Montreal, and from thence that an alien friend, coming into a British transmitted to the plaintiffs, due authority colony, and residing there for the purpose of for enabling them to procure entries of her acquiring copyright, during and at the time proprietorship in the copyright, and of an of the publication .in England, of a work assignment thereof by her to the plaintiffs, composed by him, and first published in that pursuant to statute. It was alleged also, country, is entitled to copyright in England that the book was printed and published on in the work so published, though he may not, the 2.3d day of May, 1864. under the laws in force in the colony where The principle, however, above alluded to, he is residing, be entitled to copyright there, did not control the case, which went oflf on a The facts of this case were the.se : Maria S. demurrer, on the ground that in the entry of Cummin?, author of the story called " Haunted the proprietorship of the copyright^ the name Hearts,-' was a native of this country, but in of the plaintitTs firm was different from the April and May of 1864, resided in Montreal", name stated in the bill ; and, that the date of Canada. In the month of April, 1864, publication was untruly stated. Sampson, Low, Son & Co., of London, the Set post, p. 231, note, plaintiffs, paid the said M. S. Cummins, the 21 822 OF INCORPOREAL PERSONAL PROPERTY. By the same act a book of registry is required to be kept at Stationers' Hall, open to public inspection on payment of asnuiU fee, in which may be registered the proprietorship and assign- ment of C{)pynghts.((^) And no proprietor of copyright in any book which shall be tirst published after the passing of the act can maintain any action or suit at law or in equity, or any sum- mary proceeding, in respect of any infringement of such copy- right, unless he shall, before commencing such action, suit or proceeding, have caused such book to be registered pursuant to the act ; but the omission to register will not affect the copyright in the book, but only the right to sue or proceed in respect of the infringement thereof. And the remedies of the proprietors of the sole liberty of representing any dramatic piece under the above-mentioned act of Will. IV, are not to be prejudiced, al- though no entry shall be made in the register book.(f?) And every -registered proprietor is empowered to assign his interest by making entry in the book of registry of such assignment and of the name and place of abode of the assignee, in the form given in a schedule to the act ; and such assignment so entered is de- clared to be effectual in law to all intents and purposes whatso- ever, without being subject to any stamp or duty, and to be of the same force and effect as if such assignment had been made by deed.(/)* But if the right of representing any dramatic piece (d) 5 A 6 Vict. c. 45, ss. 11, 19, 20. See Ex parte Davidson, 18 C. B. 297, E. C. L. R. vol. 86 ; Ex parte Davidson, 2 E. i B. 577, qii. ? E. C. L. R. vol. 75. (e) Sect. 24. (/) Sect. 13. ^ The first section of an act of Congress, of of the renewal of his right, unle.=s it is clearly the .SOth of June, 1834 (4 Statutes at Large, indicated that such future righj. shall also be 728), directs that deeds of assignment of assigned; this is based upon the principle, copyrights, being acknowledged in the man- that the laws were intended for the benefit of ner usual with deeds for the conveyance of the authors themselves ; Pierpont v. Fowle, 2 land, shall be recorded in the oflBce in which Wood. nn protected by the act shall be deemed personal property, ^ -^ and shall be transmissible by bequest; or, in case of intestacy, shall be subject to the same laws of distribution as other personal property, (/i) In order to give more eiffectual protection to persons entitled to the copyright of books, it is also provided that no person, not being the proprietor of the copyright, or some person authorized by him, may import into any part of the United Kingdom, or into any other part of the British dominions, for sale or hire, any printed book first composed or written or printed and published in any part of the United Kingdom, wherein there shall be copy- right, and reprinted, in any country or place whatsoever out of the British dominions.(f) And by subsequent act8,(j) books, wherein the copyright is subsisting, first composed or written or printed in the United Kingdom, and printed or reprinted in any other country, are absolutely prohibited to be imported either into the United Kingdom or into the British possessions abroad, provided the proprietor of such copyright, or his agent, shall have given notice in writing to the commissioners of customs that such copyright subsists, and in such notice shall have stated when the copyright will expire. But by another act(A;) it is pro- vided, that in case the proper legislative authorities in any British possession shall make any act or ordinance to make due provision for securing the rights of British authors in such possession, her majesty, on the same being transmitted to the Secretary of State, (g) Sect. 22. • (i) Sect. 17. (/<) Stat. 5 & 6 Vict. c. 45, s. 25. (j) Stat. 8 & 9 Vict. c. 93, s. 9 ; and 16 ) Sects. 4, 5, a)ite, p. 227. (2) Stat. 13 & 14 Vict. c. 104, s. 7. (c) Stat. 7 & 8 Vict. c. 12, ss. 2, 3, 4, extended to paintings, drawings, and photographs, by Stat. 25 & 26 Vict. c. 68, s. 12. 1 An international copyright has never printing, or publishing, of any map, chart, been a part of our system ; on the contrary, book, musical composition, print or engrav- it is declared by the eighth section of the act ing, written, composed, or made, by any per- of Congress of Feb. 3, 1841, that nothing son not being a citizen of the United States, in that act shall "be construed, to extend nor reside'ht within the jurisdiction thereof." to prohibiting the importation, or vending. OF PATENTS AND COPYRIGHTS. 327 And her majesty is also empowered(i) so personal property is assigned to him, his executors, administrators, and assigns. The executor or administrator is, as we shall see, the person who be- comes legally entitled to a man's personal estate after his decease; in the same manner that a man's heir or assign becomes entitled to his real propert3^ But the analogy extends no further. There is no necessity for the use of these terms(o) as there is for the em- ployment of the word "heirs." These terms, however, are con- stantly employed in conveyancing as words of limitation of an absolute interest; and a rule has sprung up with respect to their construction similar to the rule in Shelley's case, by which the word " heirs," when following a life estate given to the ancestor, ^ ^. .^ is merely a word of limitation, *giving to such ancestor r^244n ' o o *- -^ an estate in fee.f^j) Thus, if money or stock be settled in trust for A. for life, and after his decease in trust for his ex- ecutors, administrators, and assigns, A. will be simplj^ entitled absolutely ;{q) in the same manner as a gift of lands to A. for his life, with remainder to his heirs and assigns, gives him an estate in fee simple. But as the rule, so far as it applies to personal (/.•) GoodtiUe d. Richards v. Edmonds, 7 T. Rep. 635. (/) Stat. 7 Will. IV, & 1 Vict. c. 26, s. 28. (»i) Benyon v. Maddison, 2 Bro. C. C. 75. (w.) Principles of the Law of Real Property, 115, 2d ed. ; 120, .3d & 4th eds. ; 126, 5th ed. ; 132, 6th ed. (o) Elliott V. Davenport, 1 P. Wm.s. 84. See Earl of Lonsdale v. Countess of Berchtoldt, 1 Kay, 646. ip) See Principles of the Law of Real Property, 207, 2d ed. ; 214, 3d ed. ; 215, 4th ed.; 224, 5th ed. ; 234. 6th ed. (g) Co. Lilt. 54 b : Haines v. Hames, 2 Keen, 646 ; Grafftey v. Uumpage, 1 Beav. 46 ; Howell V. Gayler, 5 Beav. 157 ; Meryon v. Collett, 8 Beav. 386 ; Morris v. Howes, 4 Hare, 599. OF SETTLEMENTS OF PERSONAL PROPERTY. 343 property, is not founded on the same strict principle as the rule in Shelley's case, a gift of such property to the executors or ad- ministrators (not adding assigns) of a person who has taken a l^evious life interest may, under peculiar circumstances, he con- strued as giving him no further interest in such property ;(r) whilst, under the same circumstances, the word "heirs" in a gift of real estate would have given him the fee simple. As no estates can subsist in personal property, it follows that the rules, on which contingent remainders in freehold lands de- pend for their existence, have never had any application to con- tingent dispositions of personal property. Such dispositions par- take rather of the indestructible nature of executory devises and shifting uses. Thus a gift of lands to A. for his life, and after his decease to such son of A. as shall first attain the age of twenty-one years, creates a contingent remainder, which will fail ill the event of no son of A. having attained the prescribed age at the time of his decease.(5) The reason of this failure depends on the ancient rule, that there must always be some defined owner of the *feudal possession ; and, consequently, be- r^245] tween the time of the death of A. and the time of his son's attaining the age of twenty-one years, some owner of the freehold ought to have been appointed, in whom the feudal pos- session might continue.(^) Personal property, however, has evi- dently nothing to do with these feudal rules relating to possession. If, therefore, a gift be made of personal property to trustees, in trust for A. for his life, and after his decease, in trust for such son of A. as shall first attain the age of twenty-one years; or if a term of years be bequeathed to A. for his life, and after his de- cease to such son of A. as shall first attain the age of twenty-one years ; it will be immaterial whether or not the son attain the age of twenty-one years in the lifetime of his father. On his attain- ing that age, he will become entitled quite independently of his father's interest. His ownership will spring up, as it were, on the given event of his attaining the age. But as the indestructible (r) Wallis V. Taylor, 8 Sim. 241 ; see ] Beav. 52 ; Daniel v. Dudley, 1 Phi. 1 ; Attorney- General V. Malkin, 2 Phi. 64 ; Mackenzie v. Mackenzie, .3 Mac. & Gord. 559. (.v) Felting V. Allen, 12 Mee. k Wels. 279 ; 5 ILire, 57;i. (I) Principlea of the Luw of Real Property, 209, 1st ed. ; 217, 2d ed. ; 224, 3d k 4lh eds. ; 23.'i, 5th ed. , 240. 0th ed. 344 OF PERSONAL ESTATE GENERALLY. nature of these future dispositions of personal estate might lead to trusts of indefinite duration, the rule of perpetuities, which confines executor}' interests within a life or lives in heing, aiyl twentj'-one years afterwards, with a further allowance for the time of gestation, should it exist,(w) applies equally to personal as to real estate. And the further restriction on the accumula- tion of income imposed hy the Thellusson Act(;r) applies to trusts for the accumulation of the income of personal estate as well as real. Equitable interests in personal property of a future kind may be created through the instrumentality of *powers, in a ^ " -^ similar manner, and to the same extent, as future estates in \a.\id.{i/) Thus stock in the funds may be vested in trustees upon such trusts as B. shall by any deed or by his-will appoint, and in default of and until any such appointment, in trust for C, or upon any other trusts. Here C will have a vested interest in the stock, subject to be divested or destroyed by B.'s exercis- ing his power of appointment; and B., though not owner of the stock, has power to dispose of it by deed or will, and may if he please appoint to himself; in which case the trustees will be bound to transfer it to him. If the power should not be exer- cised by B., C. will then be entitled absolutely; and will not, as in the case of landed property, be subject to judgment debts in- curred by B.,(2') or to any other of his debts. But if B. should exercise his power by deed without valuable consideration, or by will, in favor of a third person, the stock so appointed would be considered in equity as part of the assets of B. the appointor, and would be subject to the demands of his creditors in preference to the claim of the appointee. (a) In case of bankruptcy, (6) it is also (u) Principles of the Law of Real Property, 242, 1st ed. ; 261, 2d ed. ; 259, 3d ed. ; 262, 4th ed. ; 272. 5th ed. ; 286. 6th ed. (x) Stat. 39 & 40 Geo. Ill, c. 98 ; Principles of the Law of Ileal Property, 243, 1st ed. ; 253, 2d ed. ; 260, 3d ed. ; 263, 4th ed'. ; 274, 5th ed. ; 288, 0th ed. iy) See Principles of the Law of Real Property, 231 et seq., 1st ed. ; 236, 2d ed. ; 243, 3d ed. ; 245, 4th ed. ; 255, 5th ed. ; 266, 6th ed. (z) Ibid. (a) Lassells v. Cornwallis, 2 Vern. 465; Bainton v. Ward, 2 Atk. 172. The doctrine applies also to appointments of real estate. See Fleming v. Buchanan, 3 De Gex, M. & G. 976. (A) Stat. 12 & 13 Vict. c. 106, s. 147, repealing stat. Geo. IV, c. 16, s. 77, to the same effect. OF SETTLEMENTS OF PERSONAL PROPERTY. 345 provided that all powers vested in the bankrupt, which he might legally execute for his own benefit (except the right of nomina- tion to any vacant ecclesiastical benefice), may be executed by the assignees for the benefit of the creditors in the same manner as the bankrupt might have ex-ecuted the same. The rules respecting the necessity of a compliance with the terms and formalities of the power, whenever it *is exer- r-.)..^^^! cised otherwise than by will,((?) and the relief afforded by the Court of Chancery on the defective exercise of a power,(t/) apply as well to personal as to real property. Powers over per- sonal estate may also be exercised by women, without their hus- bands' consent, and also in favor of their husbands, in the same manner as powers over land;(e) and the provision of the recent Wills Act, which requires wills made in exercise of powers to be executed and attested like all other wills,(/) applies equally to powers over personal estate. A general bequest of personal es- tate will also now include any personal estate which the testator may have only arjwwer to appoint as he may think fit, in the same manner as a general devise of real estate will comprise real estate subject to any such power.(^) A frequent instance of the employment of a power over per- sonalty occurs in the case of children's portions, which are usu- ally settled on all the children equally, subject to a power given to the parents to appoint the shares in a diflerent manner.^ (r) See Principles of the Law of Real Property, 238, 2d ed. ; 245, 3d ed. ; 247, 4th ed. ; 267, 5th ed. ; 2C,H, fith ed. See, now, as to deeds, stat. 22 & 23 Vict. c. 35, s. 12. {//) Ibid. 239, 2d ed. ; 246, 3d ed. ; 248, 4th ed. ; 258, 5th ed ; 269, 6th ed. (^) Ibid. 241, 2d ed. ; 248, 3d ed. ; 250, 4th ed. : 260, 5th ed. ; 279, 6lh ed. (/) Ibid. 240, 2d ed. ; 247, 3d ed. ; 249, 4th ed. ; 259, 5th ed. ; 271, 6th ed. (^) Ibid. 242. 2d ed. ; 249, .3d ed. ; 251, 4lh ed. ; 2(51, 5th ed. ; 273, 6th ed. ' Whenever a person gives property, and & Mar. R. 470; Erick.son v. Wilhird, 1 N. II. points out with certiiinty the objects who are R. 232; Jackson v. Jackson, 2 Pa. St. R. to take, the property itself, and the way in 212; Mitchells v. Johnsons, Ac, 6 Leigh's which it shall go, that creates a trust, unless R. 461 ; Still v. Spear, 45 Pa. St. R. 171. he shows clearly, that his desire expressed, This doctrine is particularly applicable to may be controlled by soipe person to whom those cases where, a testator has bequeathed, he has given a discretion to defeat it ; Gilbert or devised property to one, with a "desire, V. Chapin, 19 Conn. II. 342; Hunter tJ. Stem- "hope," or "recommendation," that he will bred<;e, 12 Geo R. 194; Gibbs v. Marsh, 3 appoint it among a certain class, or to such Metcf. R. 243 ; Lucas v. Lockhart, 10 Siued. of a designated class, a.s he shall choose ; the 346 OF PERSONAL ESTATE GENERALLY. "Wlien such a power is excM'cised, the shares previously vested in the children are divested from them, and new shares ane vested words "di'sire," "hope," "recommend," Ac, being considered sufficiently certain, if |\ the objects, and the suhject-mntter of the I trust, are clearly indicated ; and the discre- tion reposed by the testator in the donee of the power, being limited to certain individu- als of a class, and on no account to be exer- cised without that limit, is regarded as suf- ficiently clear to raise a trust ; Gibbs v. Marsh, 2 Metcf R. 243 ; Lucas v. Lnckhart, 10 Smed. & Mar. R. 470 : Erickson v. Wil- lard, 1 N. H. R. 2.32 ; Bull v. Bull, 8 Conn. R. 47 ; The New Parish in Exter v. Odwine . et al., 7 N. H. R. 142 ; Dominick v. Sayre, .3 ^ Sandf Super. C. R. 555 ; Green r. Collins, 6 Ired. R. 1.39; Withers et al. v. Yeadon, Admr., 1 Rich. Eq. R. 324; Jarnagin v. Con- way et al., 2 Humph. R. 50; Mitchells v. Johnsons, Ac. 6 Leigh's R. 461; Negroes v. Plummer, 17 Md. R. 166. But if the discre- tion or confidence reposed in the appointor, is such as to allow him to defeat the ultimate desire of the testator, there can be no trust, for one of the certainties incident to every trust is then deficient, by reason of the ex- treme license vested in the donee of the power; Harper v. Phelps, 21 Conn. R. 270; Lillard v. Robinson, 3 Litt. R. 415 ; Burbank V. Whitney, 24 Pick. R. 146 ; Ellis et al. v. Ellis's Admr., 15 Ala. R. 296. In the lan- guage of the English cases, the power of ap- pointment must be one, "which it is the duty of the party to execute, made his duty by the requisition of the will, put upon him as such by the testator, who has given him an interest extensive enough to enable him to discharge it, he is a trustee for the exercise of the power, and not as having a discretion, whether he will exercise it, or not ; and the court adopts the principle as to trusts ; and will not per- mit his negligence, accident, or other circum- stances, to disappoint the interests of those, for whose benefit he is called upon to execute it ;" Brown v. Iliggs, 8 Yes. R. 574 ; Piersou v. Garnet, 2 Brown's Ch. R. 38 ; Prevost v. Clarke, 2 Madd. Ch. R. 458. It is often a matter of considerable difficulty, to determine whether a discretion thus granted, is sufiicient to defeat a trust or not, as will be seen by a comparison of the cases of Coates's Appeal, 2 Pa. St. R. 129 ; McKonkey's Appeal, 13 Pa. St. R. 253 ; and Pennock's Estate, 20 Id. 268, which, although under different names, are the same case, decided differently three several times; the facts as reported disclose, that a testator bequeathed to his wife the use of his real estate during her life, and his per- sonal property absolutely, •' having full con- fidence, that she would leave the surplus, to be divided at her decease, justly among my chil- dren." By the first of the three cases last cited, it was decided, that this bequest was a trust for the children ; by the second, that it was a trust as to the surplus, after the death of the wife ; and by the third, that it was no trust at alL This last is, without doubt, the correct decision, being in accordance with the principles above alluded to ; for, to quote from the opinion of Chief Justice Gibson, in McKonkey's Appeal, 13 Pa. St. R. 258 : "It is plain, that she" (the wife of the testator) "was to use not only the income of the per- sonal estate, but the estate itself, as if she were the untrammelled owner of it ;'" that is, the discretion reposed by the testator in his wife, was so great, as to give her an option to defeat his desire, if she s^w fit, and conse- quently there could be no trust, as was very properly concluded on a third hearing of the case. In the case of Harrisons v. Harrisons' Admrx., 2 Gratt. R. 1, however, upon con- struction of the following words of a will, it was held, that there was an absolute trust for the children, subject to the wife's use: "In the utmost confidence in my wife, I leave to her all my worldly goods, to sell, or keep for distribution among our dear children, as she may think proper. My whole estate, real and personal, are left in fee simple to her; only requesting her to make an equal distribution among our heirs ; and desiring her to do for some of our faithful servants, whatever she may think will most conduce to their welfare, without regard to the interest of my heirs." Again, the term used by the testator to desig- nate the class intended to take — among whom the appointor may exercise his discretion — must not be too general ; that is, so general OF SETTLEMENTS OF PERSONAL PROPERTY. 347 in tliem by the operation of the power. Formerly, if such a power were so worded as not to authorize an exclusive appoint- as to give rise to an uncertaintj^ otherwise there will be no trust, and in default of ap- pointment, the property will go to the heir at law, if real estate, or if personal property, to the next of kin, according to the statute of distributions; Hill's Exrs. v. Bowman et al.j 7 Leigh"s R. C50 ; Shermer v. Shermer's Exrs., 1 Wash. (Va.) R. 206; Ralston v. Waler, 44 Pa. St. R. 279 ; in other words, the persons who are to take, must be a re- stricted and clearly ascertainable class, and can never be beyond those of children or re- lations, of the donor or donee of the power ; Mahon v. Savage, 1 Schoale & Lefroy's R. Ill; Harding v. Glyn, 1 Atk. R 409; Mor- ris V. Owen et al., 2 Call's R. 520; Cole v. Wade, 16 Ves. R. 27; Ray v. Adams, 3 Myl. & K. R. 237; Doyley v. Att.-Gen., 4 Vin. Ab. 485 ; Witts v. Boddington, 3 Bro. C. R. 95 ; Cathey v. Cathey, 9 Humph. R. 470 ; Hudson V. Hudson's Admr., 6 Munf. R. 352 ; Dominiek v. Sayre, 3 Sandf. S. R. 555 ; Fra- zier V. Frazier's Exrs. et al., 2 Leigh's R. 642 ; Grant v. Lynam, 4 Russ. R. 292 ; thus, the word "family," has been held too gen- eral ; Tolson V. Tolson, 10 Gill & Johns. R. 159; Cruwys v. Coleman, 9 Ves. R. 319; AVright V. Atkins, 1 Turn. & Russ. R. 157 ; Stubbs V. Sargon, 2 Keen's R. 255 ; and so of the word "relatives;" Gilbert v. Chapin, 19 Conn. R. 342; Dorainick v. Sayre, 3 Sandf. Super. C R. 555; or "relations;"' Varrell v. AVendell, 20 N. H. R. 431 ; but. on the other hand, "male descendants of the name of Dominiek," has been held to desig- nate a chiss, who would all take equally in default of appointment ; Dominiek v. Sayre, 3 Sandf. Super. C. R. 556 ; and the words "members of my family,'" have been re- garded as sufficiently certain to create a trust; Frazier, &c., v. Frazier's Exrs., &c., 2 Leigh's R 642. Where the power is to appoint among a certain class, all must have something ; Mc- Konkey's Appeal, 13 Pa. St. R. 253 ; Grimke V. Exrs. of Grimke, 1 Dessausa. R 377 ; Ilaynesworth v. Cox, Harp. Ec). 119, n. ; Fronty v. Fronty, Bail. Eq., Ap. 517 ; With- ers et al. V. Yeadon, Admr., 1 Rich. Eq. R. 324; Cathey v. Cathey et al., 9 Humph. R. 470 ; Knight v. Yarborough, Gilm. R. 27 ; Hudsons V. Hudsons' Admr , 6 Munf. R. 352 ; Mitchells v. Johnsons, &c., 6 Leigh's R. 401 ; the word among, indicates that the discretion is limited to all, and to be exercised only as regards the proportion in which each is to take, which, of course need not be equally ; Withers et al. v. Y'eadon, Admr., 1 Rich. Eq. R. 324 ; Knight v. Y'arborough, Gilm. R. 27 ; Mitchells v. Johnsons, &c., 6 Leigh's R. 461 ; though see to the contrary, Bolton v. De Peyster, 25 Barb. R. 539 ; Ingraham v. Meade, 3 Wallace, Jr. R; but no illusory appointment will be valid; Grimke v. Exrs. of Grimke, 1 Dessauss. R. 377 ; for that would not be fulfilling the intention of the testator, though the English practice of setting aside certain appointments as illusory, it seems, is not known as part of the Pennsylvania juris- prudence ; Ingraham y. Meade, c/w^^ ; GraefF V. De Turk, 44 Pa. St. R. 532. If, however, the donee of the power, has the power of ap- pointing to such of the class as he may see fit, he may appoint to one only, for that is in ac- cordance with the discretion reposed in him ; Curr V. Crain et al., 2 Eng. R. 241 ; Ball v. Ball, 8 Conn. R. 47 ; Lasley v. Blakeman, 4 B. Mon. R. 540 ; where, however, one left an estate to trustees, to pay to suck brothers and sisters of my daughter and their children, and in such proportions, as she shall, &c., di- rect and appoint, my will being, that she shall have power to dispose of the same among her said brothers and sisters and their children, as she may think fit, it was held, that each brother and sister was entitled to some por- tion of the fund ; Lippincott v. Ridgway, 2 Stockt. R. 164. But in either case, if the appointor does not exercise the power, all of the cla.ss will take, for in both instances the testator has indicated the class, as the recipi- ents of his bounty ; in the one case, granting to a third person the power to divide it among them as he will, in the other, allow- ing him to give it to one of the class men- tioned, if he chooses; Carr v. Crain et al., 2 Eng. R. 241 ; Bull v. Bull, 8 Conn. R. 47 ; Collins V. Carlisle, 7 B. Mon. R. 14 ; Emory 348 OF PERSONAL ESTATE GENERALLY. ment to some or one of the children, it was held by the Court of Chancerj, as a rule of equity, that each child ought to have a substantial share; and an appointment to any *child of a ■- -" very small share was called an illusory appomfment, and was held void.(A) But this doctrine having given rise to diffi- culties and family disputes, from the uncertainty of the question what was too small or what a sufficient share, the meddlesome doctrine of equity on this point was a few years ago abolished by act of Parliament ;(z) and now the appointment of any share, however small, cannot be set aside on the ground of its being illusory. The act extends, as did the doctrine, to real estate as well as personal; but landed property is, from its nature, seldom cut up into little portions. Although no appointment is now void for being illusory, yet where an exclusive appointment is not authorized, any appoint- ment, by which any object of the power would be entirely ex- cluded, is still void. Thus, if 1000^. be given to A., B., and C. (h) 1 Sugd. Pow. 508 ct seq. ; 449, 8th ed. ; Chance on Powers, 396 et seq. (i) Stat. ]1 Geo. IV, k 1 Will. IV, c. 46. et al. V. The Judge of Probate, 7 N. H. R. So restricted is this power of appointment 142; Dominick v. Sayre, 3 Sandf. Super. C. to the class specified, that it has been held, K. 555 ; (xreen v. Collins, 6 Ired. L. R. 139 ; that a power to appoint to children, will not McKonkey's Appeal, 13 Pa. St. R. 253; authorize an appointment to grandchildren; Thomas v. Thomas, 1 Raw. R. 118; Withers Rankin et al v. Hoyle et al., 6 Ired. Eq. R. et al. V. Yeadon, Admr., 1 Rich. Eq. R.32i; 161 ; Jarnagin v. Conway et al., 2 Humph. Cathey v. Cathey et al., 9 Humph. R. 470; R. 60; Morris v. Owen et al., 2 Call's R. Morris t^. Owen et al., 2 Call's R. 520 ; Mc- 520; Hudsons v. Hudsons' Admr., 6 Munf. Gaughey's Admr. v. Henry, 15 B. Mon. R. R. 352; Lasley v. Blakeman, 4 B. Mon. R. 383 ; Cruse v. McKee, 2 Head's R. 1 ; Rogers 540 ; Little v. Bennett, 6 Jones Eq. R. 156 ; V. Rogers, 2 Id. 660; and this is in accord- Ilorwitz v. Norris, 49 Pa. St. R. 213. ance with that principle of law which pre- But where there are no children, or there scribes, that where there is a general and a are strong and conclusive circumstances, to particular intention manifested by the tes- show that such was the intention of the tes- tator, the general intention shall prevail, tator, grandchildren will take under such a though the particular intention be defeated : bequest to children ; Cutter v. Doughty, 23 Heirs of Capel v. McMillan, Admr., 8 Port. Wend. R. 522; Ruff v. Rutherford et al., 1 (Ala.) R. 205 ; Statesworth v. Statesworth, Bail. Eq. R. 7 ; Hallowell et al. v. Phipps et 5 Ala. R. 145. al., 2 Whart. R. 376; Dickinson v. Lee, 4 It has been held, however, in the case of Wat. R. 82; Mowatt v. Carson et al., 7 Baker et al. v. Lorillard, 4 Comst. R. 257, Paige's R. 328 ; Phillips's devisees v. Beale, that where there was a devise to one of prop- 9 Dana's R. 1 ; Ingraham v. Meade, 3 Wal- erty, to dispose of the same among children lace, Jr. R. and grandchildren, it might have been ap- pointed to some in exclusion of the others. OF SETTLEMENTS OF PERSONAL PROPERTY. 349 in sueli shares as their father shall appoint, and in default of ap- pointment to them equally, an appointment of 900/. to A. would now be good, as 100/. would remain to be equallj^ divided between the three,(A;) of which B. and C. would get each one- third. (/) But a subsequent appointment of the remaining 100/. to B. would be void, as altogetlier excluding C, who is equally an object of the power.(7>?) It is customary, however, in modern settlements to give to parents a power of appointment in favor of any one or more of the children exchisively of the others. And in order that those to whom appointments have been made should not obtain more than may have been intended for them, it is generally provided that no child taking any share of the fund under any appointment *shall be entitled to any share in p^i^o^q-i the part unappointed without bringing his or her share into hotchpot,^ and accounting for the same accordingly. Under such a provision, A., in the instance above given, would not be entitled to any share in the 100/. unappointed, without also agree- ing to a like division of his 900/. amongst himself and the others. The clause of hotchpot operates favorably to the representatives of those children who may happen to die before any appointment shall have been made to them. For when a power is given to appoint amongst children, no appointment can be made to the executors or administrators of those who may have died;(?^) so that such executors or administrators cannot possibly take more than the aliquot part given to the deceased child in default of any appointment; whilst they may be partially or totally ex- cluded even from that by a partial or complete exercise of the power of appointment in favor of the surviving children, or even of a single survivor. When the appointment is partial only, the executors or administrators of a deceased child will, under the hotclipot clause, divide the fund unappointed with the other children to whom no appointment may have been made, whereas, without such a clause, the children to whom appointments may (/,) Young ■!;. Waterpark, 13 Sim. 202. (/) Wilson V. Piggott, 2 Yes. Jun. 351 ; Wombwell v. Hanrott, 14 Beav. 143. See Foster V. Cautley, 6 De Gex, M. & G. 55. {m) 2 Vea. Jun. 355. (71.) Boyle V. The Bi.shop of Peterborouj^h, I Ves. Jun. 299 ; Ilicketls v. Loflus, 4 You. AColl. 519. ' Termed in the civil low, "collation ;'' Reed v. Crocker, 12 La. An. H. 436. 350 OF PERSONAL ESTATE GENERALLY. have been made would be equally entitled to participate in the part unappointed.(o) When a power is given to appoint property amongst a par- ticular class, no portion of the fund can be appointed in favor of any person who is not a member of that class; and any appoint- ment to such person will accordingly be void.^ Thus, if the power be to appoint the property to all or any of the children of the appointor *in such manner as he may think fit, no L ^ ^ interest in the property can be appointed to any grand- child of the appointor; "for a grandchild is not an object of the power.(p) So if the power be to appoint amongst nephews or grandnephews, those only can take any shares who answer that description. (ry) Again, if the power be to appoint portions amongst younger children, nothing can be taken by a younger son who afterwards becomes the eldest by the decease of his elder brother ;(r) although if he should have actually received any share in the money whilst a younger son, he will not be obliged to refund it on becoming the eldest.(.5) The word "younger," however, is not, in parental provisions,(<) taken hterally, but as meaning any child who may not be entitled to the family estate. Therefore a daughter, who may be the eldest child, would be considered as a proper object of a power to appoint amongst the younger children, whilst her younger brother, being the eldest son entitled to the family estate, would not be allowed to participate, (?() And in the same manner a second son becoming the eldest, but not obtaining the family estate, would be allowed a share.(v) A power to appoint amongst (o) Wilson c.Piggott, 2 Ves. Jun. 351; Wombwell r. Hanrott, 14 Beav. U3 ; Walmsley V. Vaughan, 1 De Gex & Jones, 114. (p) Alexander v. Alexander, 2 Yes. Sen. 640 ; Bristow v. Warde, 2 Ves. Jun. 336. {q) Falkner v. Butler, Amb. 514; Waring v. Lee, 8 Beav. 247. {r) Chadwick v. Doleman, Vern. 528 ; Lord Teynbam v. Webb, 2 Ves. Sen. 198 ; Gray v. Earl of Limerick, 2 De Gex & Smale, 370. See Sandeman v. Mackenzie, 1 John. & H. 613. (4) 2 Sugd. Pow. 293 ; 680, 8th ed. (<) Hall V. Hewer, Amb. 203 ; Lyddon v. Ellison, 19 Beav. 565. (7/) Pierson v. Garnet, 2 Bro. C. C. 38 ; Ueneage v. Hunloke, 2 Atk. 456 : Beale v. Beale, 1 P. Wms 244. (v) Spencer v. Spencer, 8 Sim. 87 ; Maconbrey v. Jones, 2 Kay & J. 684. 1 See ante, p. 247, note. OF SETTLEMENTS OF PERSONAL PROPERTY. 351 cliildren living at their father's decease includes a child en ventre sa mere.[w) In some cases where the power only authorizes an appoint- ment amongst children, an appointment in favor *of the r^^cyr^-i issue of a child may be sustained as being, in eft'ect, first an appointment to the child, and then an assignment by such child in favor of his issue.(a:) But this of course can only be done when the child is of age, and is a party to and executes the deed by which the appointment is made. And the more regular plan in such cases is, for the father first to make the appointment in favor of the child, and then for the child to make an assignment of the fund appointed to trustees in trust for his children in the manner intended. An appointment by a father in favor of his child, in exercise of a power for that purpose, ought to be made for the benefit of the child who is the object of the provision, and not indirectly for the benefit of the father who makes the appointment.^ Accordingly, any bargain between the father and the child by which the former is to receive any advantage for exercising his power will be con- sidered as, in technical phrase, a fraud on the power, and will render the appointment void.(^) But when there is no evidence that the appointment is made under a bargain for the benefit of the father, although there may be strong suspicion that such is the case, the appointment cannot be set aside. (z) Powers of appoint- ment amongst children usually enable the parent to fix the age or time at which the fund appointed shall vest in any child. But, on the principle just stated, a father will not be allowed to {w) Beale v. Beale, 1 P. Wms. 244. (x) Routledge v. Dorril, 2 Ves. Jun. 357 ; West v. Berney, 1 Russ. & My. 4.31, 439 ; Gokl- smid V. Goldsmid, 2 Hare, 187. (?/) Daubeney v. Cockburne, 1 Meriv. 626 ; Palmer v. Wheeler, 2 Ball & Beatty, 18 ; Jackson v. Jackson, 1 Dru. 9] ; Thompson v. Simpson, 2 Jones & Lat. 110. (z) iMcQueen v. Faiquhar, 1 1 Ves. 467 ; Hamilton v. Kirwan, 2 Jones k Lat. 393 ; Camp- bell V. Home, 1 You. k Coll. N. C. 664. ' Bostick V. Winton, 1 Sneed's R. 524, pointer, and to become security for the may be referred to in illustration of the doc- father's debts ; with the understanding that trine stated in the text ; in which case it was the land was to be reconveyed ; was not such decided, that a conveyance made to a child, an appointment in good faith, as would de- in order that he might have sufficient prop- feat the remainder.*, erty to become bail for the father, the ap- 352 OF PERSONAL ESTATE GENERALLY. make an immediate appointment to an infant child, for the sake of becoming himself entitled to the fund a[)pointed, as the child's r*ocoT personal representative *in the event of its decease.(a) '-*'*'-' An appointment to an infant is not, however, necessarily void on account of the circumstance that the father, who has made the appointment, will become entitled to the property appointed in the event of the child's decease, (^) In the exercise of powers of appointment amongst childrenj care should be taken not to postpone the vesting of their shares to a period wdiicli may exceed the limits allowed by the law of perpetuity.(c) When the power of appointment is a general power, enabling the appointor to make a disposition in favor of any object he may please, the property is evidentlj^ not tied up so long as such a power exists over it; and neither the reason nor the rule which forbids a perpetuity has any application till some settlement is made in exercise of such a pow'er. In such a case, therefore, the limits of perpetuity commence from the time of the appointment.(<:Z) But where the power of appointment is to be exercised only in favor of a particular class of objects, the property subject to the power is evidently already tied up in favor of that class. The limits of perpetuity are therefore in this case to be reckoned, not from the time of the exercise of the power, but from the date of its creation. The interests given by the power must, for this purpose, be regarded as if they had been inserted in the settlement by which the power was created; and if such interests would have been too remote, if inserted in the original settlement, they will be too remote when given in exercise of the power. (e) Thus a person having a general power i-^ -. of appointment by will over a fund, may *by his will ap- ^ " ' -^ point a share of it in favor of any unborn cliiki of his own, to be vested in such child on his attaining the age of twenty-three years. The limit of perpetuities is reckoned from ((?) Cunynghame v. Thurlow, 1 Russ. & M. 436; Lord Sandwich's Case, cited 11 Ves. 479; Gee v. Gurney, 2 Coll. 486. (b) Butcher v. .Jackson, 14 Sim. 444 ; Fearon v. Desbrisay, 14 Beav. 635. (c) See ante, p. 245. (d) 1 Sugd. Pow. 249, 495 ; 395, 8th ed. (e) Co. Litt. 271 b, n. (1), vii, 2 ; 1 Sugd. Pow. 498 ; 39fi, 8th ed. : Routledge v. Dorril, 2 Ves. Jun. 357. OF SETTLEMENTS OF PERSONAL PROPERTY. 353 the time of the appointment, which in this case is the death of the appoiuter, when his will begins to take effect. The child must necessarily then be born, or in ventre sa mere, and the child's life is accordingly the life then in being within which the share must necessarily vest. But if by a marriage settlement a fund be settled in trust for the fiither for his life, and after his decease in trust for the children, in such shares as he shall appoint by his will, he cannot make an appointment in favor of any unborn child, to be vested on his attaining the age of twenty-three years. For in this case the limit of perpetuities counts from the date of the settlement, when the property was first tied up for the benefit of the children; and this limit would be exceeded if the child should not attain the given age within twenty-one years after the decease of the father, who was the life in beins: at the date of the settlement. And the rule is, that every limitation which may exceed in duration a life or lives in being, and twenty-one years afterwards (allowing for the period of actual gestation), is void as tending to a perpetuity.(/) When personal property is directed to be paid to any persons at a future time, the leaning of the courts is always in favor of vested interests ; that is to say, the courts lean to that construc- tion which will give to the parties a present assignable and trans- missible right to that which is not payable till a future time.* (/) See Principles of the Law of Real Property, 242, Tst ed. ; 251, 2d ed ; 259, 3d ed.; 273, 5th ed. ; 287, 6th ed. 1 The fundamental rule, that the intention vesting of legacies ; Johnson v. Valentine, 4 of the testator is to govern the construction Sandf. Super. C. R. 36 ; Reed v. Buckley, 5 of a will, is the primary test to discover Wat. & Serg. R. 517 ; Roberts's Exrs. f. Brin- whether a legacy is vested or contingent ; ker, 4 Dana's R. 572 ; Cowdin v. Perry et al., Chighizola v. Le Baron, Exr., 21 Ala. R. 406 ; Exrs., 11 Pick. R. 503 ; The State v. Mann, 3 Marr, Exr., v. McCulloch, Admr., 6 Port. Har. & Johns. R. 338 ; Eldridge w. Eldridge, (Ala.) R. 607 ; Stone etal., Admrs., u. Massy, 9 Gush. R. 516; Manderson v. Lukens, 23 2 Yeates R. 363 ; Scott, Exr., v. Price, Exr., 2 Pa. St. R. 31 ; Chew's Ap., Z'^A. 23 ; Young Serg. & Raw. R. 59 ; Lemonier v. Godfroid, 6 v. Stoner, Id. 105 ; Devane v. Larkins, 3 Har. & Johns. R. 474. It is often, however, Jones's Eq. R. 377. Thus, words of survivor- a matter of great difficulty, to decide whether, ship are always to be referred to the period of from the intention of the testator, it was de- the testator's death, unless there is a plain signed that a legacy should be vested or con- intent to the contrary ; Moore v. Lyons, 25 tingent ; Shalluck, Admr., v. Stedman etal., Wend. R. 119 ; Ilulburt v. Ericson et al., 16^ Exrs., 2 Pick. R. 408. Ma.ss. R. 241; Drayton v. Drayton et al., 1 /- The legal construction of wills favors the Dessauss. R. 325 ; Elliott v. Exrs. of Smith, 354 OF PERSONAL ESTATE GENERALLY. Thus if a legacy be given to a person to be payable when be at- tains the age of twenty-one years, the legacy is considered to be immediately vested, and will accordingly be payable to the ad- ministrator of the lesratee in case he should die *uuder [*254] age.{(/) So if personal estate be settled in trust for A-. for life, and after his decease for all his children in equal shares, each of his children will be entitled to a share, whether such child survive his parent or not, and although such child should die in iufancy.(/() If, however, the property should consist of mone}* charged on land or other real estate, such as the portions of (g) 2 Black. Coram. 513; Co. Lift. 2.37 a, note (1). (k) Skey V. Barnes, 3 Mer. 335; Templeton v. Warrington, 13 Sim. 267. V. Binns, 1 Kiiy & John. 417. See Swallow lb.; Sealy v. Laurens, lb.; Fulton v. Fulton, 2 Grant's Gas. 28; Doniinick v. Moore, 2 Bradf. 11. 201. Where time is annexed to the payment only, and not to the gift itself, the legacy is vested ; Chighizola v. Le Baron, Exr., 21 Ala. R. 406 ; Seibert's Appeal, 13 Pa. St. II. 501 ; Moore v. Smith, 9 Wat. R. 403 ; Lamb V. Lamb, 8 Id. 184 ; Bayard v. Atkins, 10 Pa. St. R. 17 ; Schriver v. Cobeau, 4 Wat. R. 130 ; Patterson, surviving Exr., v. Haw- thorne, Admr., 12 Serg. & Raw. R. 112; Ma- gofiBn, Admr., v. Patton et al., Exrs., 4 Raw. R. 113 ; Jack^pn's Admr. v. Subett, 10 B. Hon. R. 572; Furness, Exr., v. Fox, 1 Gush. R. 134 ; Ware v. Cook, 1 Halst. Gh. R. 193 ; Marr, Exr., v. McCuUough, Admr., 6 Port. R. 507; Patterson v. Ellis, 11 Wend. R. 269 ; Donner-s Appeal, 2 Watt. & Serg. R. 372; Roberts's Exrs. v. Brinker, 4 Dana's R. 572 ; Gregg et al. v. Bethea, 6 Port. (Ala.) R. 9; Goddard v. Johnson, Exr., 14 Pick. R. 352 ; Lemonier v. Godfroid, 6 Har. & Johns. R. 474 ; Boone v. Sinkler, 1 Bay's R. 369 ; Qar- penter v. Heard, 14 Pick. R. 449 ; Gifford v. Thorn, 1 StocM. R. 702 ; Bowman's Ap., 34 Pa. St. R. 19; Bund's Exr. v. Burd's Admr., 40 Pa. St. R. -182 ; Roome v. Phillips, 24 N. Y. R. 463 ; and in like manner, when the di- vision, merely, of the property, is postponed to a future time, and not its distribution, the legacy is considered vested ; Spruill i\ Moore, 5 Ired. Eq. R. 287 ; Womack v. Greenwood, 6 Geo. R. 299 ; Smith v. Wise- man, 6 Ired. Eq. R. 540 ; McLemore v. Mc- Lemore, 8 Ala. R. 687; Christian v. Chris- tian, 3 Port. (Ala.) R. 351 ; Etheridge, Admr., V. Bell, 5 Ired. L. R. 87 ; Candler v. Dinkle, 4 Wat. R. 143 ; Fanty v. Kline, Penning. R. 551. If something out of the principal is to be immediately paid to the legatee, or appropri- ated in his favor, the legacy will be vested ; as the giving of interest on the principal sum until the time of payment arrives ; Schriver V. Cobeau, 4 Wat. R. 130 ; Heleman v. Hele- man et al. , 4 Raw. R. 440 ; King v. King, 1 Wat. & Serg. R. 205 ; Marr, Exr., v. McCul- lough, Admr., 6 Port. R. 507 ; Patterson v. Ellis, 11 Wend. R. 269 ; Hopkins v. Jones, 2 Pa. St. R. 69; Kelso v. Dickey, 7 Wat. & Serg. R. 279 ; Lemonier v. Godfroid, 6 Har. & Johns. R. 474 ; Boone v. Sinkler, Exr., 1 Bay's R. 369; Cassilly et al. v. Meyer et al., 4 Md. R. 1. When there is a gift to a class of persons, to take effect in enjoyment at a future period, the property vests in the persons as they come 171 esse, subject to be opened and let in others, as they may be born afterwards ; Johnson v. Valentine, 4 Sandf. Super. C. R. 36; Barnes et al. v. Prevost et al., 4 Johns. R. 61 ; and see, also, Hall v. Eddy, 2 Green's R. 169 ; Wardi;. Saunders, 3 Sneed's R. 387 ; Yeaton v. Roberts, 8 Foster's R. 459 ; Cooper V. Hepburn, 15 Gratt. R. 551 ; Nichols v. Denny, 37 Missi. R. 59 ; Tucker v. Bishop, 16 N. Y. R. 402 ; Hocker v. Gentry, 3 Met. (Ky.) R. 463. OF SETTLEMENTS OF PERSONAL PROPERTY. 355 younger children when the family estate is entailed on the eldest son, the rule is different ; and if any of the children should die before the time when his or her portion becomes payable, it will, in the absence of special provision to the contrary, sink into the land for the benefit of the estate. («) In the settlement of personal property upon children there are two plans, either of which may be adopted with respect to the vesting of the interests given. The one plan is, to vest the in- terest of the children in them immediately as they come into being, divesting from each of them proportionate shares as others are born, and also divesting the shares altogether in favor of the others, in the event of the decease of any son under age, or of any daughter under age and without having been married. The other plan is, to vest the interest given only in those who, being sons, attain the age of twenty-one years, or, being daughters, attain that age or marry under it. So far as the corpus of the fund is concerned, the result of each of these plans is the same, the property being ultimately divided only amongst those chil- dren who, being sons, live to come of age, or, being daughters, come of age or previously marry. But with regard to the in- come of the fund the plans are different. In the *first r^occn case, the income belongs to the children whilst under age; *- -' but in the second no interest either in the income or in the prin- cipal is given during minority, or, in the case of daughters, until marriage under age. In the first case, therefore, if the father be dead, the income will be payable to the guardian of the children toward their maintenance and education ; but in the second case there will be no provision for these purposes in the absence of express directions. Such directions therefore should in such case be always inserted, with a provision for the accumulation of the surplus income by way of increase of the principal. If however the whole property is ultimately to go amongst the children, (/t) or if the persons entitled, in the event of the children not living to attain vested interests, should agree,(^) the Court of Chancery will direct the income to be applied for the children's maintenance, in the absence of sufficient provision for that pur- (t) Co. Litt. 237 a, n. (1). See Evans v. Scott, 1 H. of L. Cases, 4.3, 57. {k) Haley v. Bannister, 4 Mad. 275 ; Errat v. Barlow, 14 Ves. 202. (/) Turner v. Turner, 4 Sim. 4.30 ; Cannings v. Flower, 7 Sim. 523. 356 OF PERSONAL ESTATE GENERALLY. pose, and even in tlie face of an exjiress direction to accumulate the income. (??)) And a recent act of Parliament now pro\ddes that, in all cases where any property is held by trustees in trust for an infant, either absolutely or contingently on his attaining the age of twenty-one years, or on the occurrence, of any event previously to his attaining that age, it shall be lawful for such trustees, at their sole discretion, to pay to the guardians (if any) of such infant, or otherwise to apply for or towards the mainten- ance or edu.cation of such infant, the whole or any part of the income to which such infant 7nay be entitled in respect of such prop- erty, whether there be any other fund applicable to the same purpose, or any other person bound by law to provide for such r*9cL«i i^^iJitenance or ^education, or not; and such trustees shall ■^ accumulate all the residue of such income by way of com- pound interest, by investing the same and the resulting income thereof from time to time in proper securities, for the benefit of the person who shall ultimately become entitled to the property from which such accumulations shall have arisen : provided always, that it shall be lawful for such trustees at any time, if it shall ap- pear to them expedient, to apply the whole or any part of such accumulations as if the same were part of the income arising in the then current year.(??) This enactment applies only to deeds ex- ecuted, and wills executed or confirmed or revived by codicil exe- cuted after the passing of the act, which took place on the 28th of August, 1860. (o) The act, it will be observed, applies only to income to which the infant may be entitled; so that if the infant should not be entitled to the income irrespectively of the act, it would scarcely be safe for the trustees to apply it for the infant's maintenance without express authority. In marriage settlements a life interest is usually and prop- erly given to the father and mother, so that no provision is required for the maintenance of the children until after the de- cease of the survivor. And where life interests are not given to the parents, but provision is made for the maintenance of the children during the father's lifetime out of the settled fund, such provision is considered as primarily applicable for the mainten- (w) Greenwell v. Greenwell, 5 Ves. 194. (o) Sect. 34. («) Stat. 23 k 24 Vict. c. 145, s. 26. OF SETTLEMENTS OF PERSONAL PROPERTY. 357 auce of the children accordiiigl3^(p) But the general rule is, that every father is bound to maintain his children, if of ability so to do •,{q) and a provision contained in a gift *to an in- p^^K,,-, fant child, for his maintenance and education, will not be ^ "' applied for that purpose during his father's lifetime, if the father is able to maintain him in a manner suitable to his condition and prospeets.(r)^ When, therefore, it is intended that the income of (p) Stocken v. Stocken, 4 Sim. 152; Meaeber v. Younge, 2 Myl. & K. 490. See Thomp- son V. Griffin, 1 Craig & Phillips, 317. (q) Andrews v. Partington, .3 Bro. C. C. 60. (r) Maberley v. Turton, 14Ves. 499 ; Jervoise v. Silk, G. Cooper, 52; Ex parte Williams, 2 Collyer, 740. 1 A father will not be allowed for the main- tenance and education of his children, out of their fortunes, if he is of ability to support them; In the matter of Kane et al., 2 Barb. Oh. R. 375 ; Walker et al. v. Prowder et al., 2 Ired. Eq R. 478 ; Whilden et al. v. Whil- den,«:sr., et al., Riley's Ch. Gas. 205; Addi- son V. Bowie, 2 Bland's Ch. R. 606 ; In the matter of Bostwick, 4 Johns. Ch. R. 100; Jones V. Stockett, 2 Blands Ch. R. 431 ; Cruger v. Eaywood, 2 Dessauss. R. 94 ; In the matter of Harland's Accounts, 5 Raw. R. 323 ; Dawes v. Howard et al., 4 Mass. R. 97; Guion V. Guion's Admr., 16 Mo. R. 52; Sparhawk et al. v. Admr. of Buell et al. , 9 Vt. R. 70 ; Presley v. Davis, 7 Rich. Eq. R. 105 ; Barring v. Coles, 2 Bradf. R. 349 ; •Hines v. Mullins, 25 Geo. R. 696 ; and this is true also, where the child, by the father's consent, is in the custody of the mother, who has been guilty of misconduct; Gill v. Read, 5 R. I. R. 343 ; but the father's situation in life, the future prospects of the children, the extent of their fortune, and all other circum- stances, must be taken into consideration in determining the ability of the father; In the matter of Kane et al., 2 Barb. Ch. R. 375 ; Walker et al. v. Crowder et al., 2 Ired. Eq. R. 478 ; Ellerbe v. The Heir,«, Ac, of Ellerbe, 1 Speer's Eq. R. 328 ; Brown v. Deloach, 28 Geo. R. 486 ; Alston v. Alston, 34 Ala. R. 15. The case is, of course, different where the father is not of ability; Myers v. Myers, 2 McCord's Ch. R. 255 ; Dawes v. Howard et al., 4 Mass. R. 97 ; Newport et al. v. Cook et al., 2 Ash. R. 332; and where, on that ac- count, sums from the child's income have been paid over to the father, by the trustee of the child, in the due exercise of his discretion, for the support of the child, it has been held, that no promise of repayment can be implied, on account of a subsequent change for the bet- ter, in the circumstances of the father ; Pearce V. Olney, 6 R. I. R. 269 ; and it seems, that a mother will be allowed for the support of her children, out of their estates, notwithstanding she may be of ability lo maintain them ; Wilkes V. Rogers et al., 6 Johns. R. 566; Whipple V. Dow, 2 Mass. R. 415; Dawes v. Howard et al., 4 Id. 97; Guion v. Guion's Admr., 16 Mo. R. 52 ; Osborne 41. Van Horn et al., 2 Florida R. 360. But where a mother has maintained a child, she will not be al- lowed to recover what she has expended, upon an implied promise of the child to refund, for the law will presume that she has furni.shed her means gratuitously ; Cummings v. Cum- mings, 8 Wat. R. 366 ; and the same is true of a stepfather; Brown v. Sockwell, 26 Geo. R. 380; Gillett v. Camp, 27 Mo. R. 541; Brush V. Blanchard, 18 111. R. 46. In all cases, however, the court will consult the permanent interests of the children ; In the matter of Burke, 4 Sand. Ch. R. 617; and will make exceptions to ordinary rules of law in their favor, as has been done by allow- ing interest upon legacies left to children, from the time of the death of the testator, where there was no other means of support ; Sullivan i\ Winthrop et al., 1 Sumn. 11. 1 ; Miles V. Wister, 5 Bin. R. 479 ; Lupton et al. V. Lupton et al., 2 Johns. Ch. R. 614 ; Leiby's Ap , 49 Pa. St. R. 182. 358 OF PERSONAL ESTATE GENERALLY. property g'iven to children should be applied to their maintenance during their father's lifetime, Avithout reference to his ability to maintain them, the application of the income, without refer- ence to his ability, should be expressly directed; and, if such application be so directed, the income must of course be applied accordingly.(.s) When two funds are provided for the mainten- ance of an infant, it is frequently difficult to decide to which fund recourse should be first had.^ The general rule is, that the interest of the infant determines the order of application ;(^) but, in order to avoid questions, it is very desirable, when two funds are provided for an infant's maintenance, to direct that one of them shall be in aid only of the provision atforded by the other. But the act to which we have just referred gives, as we have seen,(?<) a discretion to the trustees to apply the income of the infant's property for his maintenance, whether there be any other fund applicable to the same purpose, or any other person bound by law to provide for such maintenance or education, or not. In settlements of personal property, it has long been usual to provide for the investment of the fund settled in the Parliament- ary stocks or public funds of Great Britain, or at interest upon government or real securities in England or Wales, but not in Ireland ; and at *the present day investments in railway ^ " -' debentures, preference shares, and other securities, yield- ing a larger income, are often authorized. Government securi- ties, as distinguished from stocks or funds, seem to be nothing else than exchequer bills, in which trustees appear to be justified, even without express authority, in investing the property for any- temporary purpose, as during the necessary delay in completing a contemplated mortgage security.(.r) But where a permanent investment is intended, a trust to lay out money in government securities will not authorize the purchase of exchequer bills.(?/) {s) See Wetherell v. Wilson, 1 Keen, 80 ; White v. Grane, 18 Beav. 571. (f) Foljambe v. "Willoughby, 2 Sim. & Stu. 165 ; Lygon v. Lord Coventry, 14 Sim. 41. (u) A7ite, p. 255. (x) Matthews u. Brise, 6 Beav. 239, 244. (y) Ex parte Chaplin, 8 You. & Coll. 397; as to the issue of E.xehequer Bills, see stat. 24 Vict. c. 5. 1 Where a fund ha? been appropriated to further allowance will be made by the court ; the maintenance and education of children, In the matter of Davison- et al., 5 Paige's Ch. it must be completely exhau.sted before a R. 136. OF SETTLEMENTS OF PERSONAL PROPERTY. 359 Real security means the mortgage of real estate, namely, freehold or copyhold hereditaments of sufficient value. (<:) And if it be desired that the trustees should have power to invest the trust money on mortgage of leasehold estates, or in railway deben- tures,(a) or shares, or any other securities, or to lend it to any party on his bond, express authority ought to be given to the trustees for the purpose. Investments in Ireland were often ex- pressly prohibited, on account of an act of Parliament, wdiich empowered trustees, who were authorized by their trust to lend money at interest on real securities in England, Wales, or Great Britain, to lend the same at interest on real securities in Ireland. (6) But all loans of money on real securities in Ireland under the act, in which any minor or unborn child, or person of unsound mind might be *interested, were required to be made by the |->^9rQ-| direction and under the authority of the Court of Chan- cery in England, to be obtained in any cause or upon petition in a summary way ;(c) and every such loan was to be made with the consent of the person or persons, if any, whose consent might be required as to the investment of such money upon real securities in England, Wales, or Great Britain, testified in the manner re- quired by the trust.(tZ) And it was also provided that the act should not apply to cases where there was an express restriction against the investment of the trust money on securities in Ire- land. (e) But a recent statute now provides, that when a trustee, executor, or administrator, shall not, by some instruments creating his trust, be expressly forbidden to invest any trust fund on real securities in any part of the United Kingdom, or on the stock of the Bank of England or Ireland, or on East India stock, it shall be lawful for such trustee, executor, or administrator, to invest such trust fund on such securities or stock; and he shall not be liable on that account as for a breach of trust, provided that such (2) See Stickney v. Sewell, 1 My. & Cr. 8; Pbillipson v Gatty, 7 Hare, 516; Marit v. Leith, 15 Beav. b2i : Drosier v. Brereton, 15 Beav. 221. Turniiike bonds are real securities for some purposes ; Robinson v. Robinson, Lords Justices, 1 De Gox, Mac. & Gord. 2-J:7, 262. ('/) Mortimore v. Mortirnore, 4 De Gex & Jones, 472. {f>) Stat. 4 & 5 Will. IV, c. 29. Leaseholds for lives perpetually renewable at a head rent, form real securities in Ireland ; Macleod v. Annesley, 10 Beav. 600. (c) Slat. 4 A 5 Will. IV, c. 20, s. 2. Ex parte French, 7 Sim. 510; E.\ parte LonI Wil- liam Pawlelt, 1 riiill. :>70 ; Norris v. Wrii,'ht, M Beav. 201. [d) Sect. 4. (0 Sect. 5. 360 OF PERSONAL ESTATE GENERALLY. investments shall in other respects be reasonable and proper.(/) This provision has been made retrospective by act of I*arlia- m€nt.(_9) A further enactment empowers the making of general orders from time to time as to the investment of cash under the control of the Court of Chancery, and for the conversion of any SI. per cent, bank annuities, standing in the name of the account- ant-general of the Court of Chancery, in trust in any cause or matter, into any stocks, funds, or securities, upon which by any ^ ^ ^ such o-eneral order cash *under the control of the court '-'"-' may be invested, (/i) And when any such general order shall have been made, trustees, executors, or anministrators, hav- ing power to invest their trust funds upon government securities, or upon Parliamentary stocks, funds, or securities, or any of them, may invest such trust funds or any part thereof in any of the stocks, funds, or securities, in or upon which, by such general order, cash under the control of the court may from time to time be invested.(z) In pursuance of this enactment a general order has been made, dated the 1st of February, 1861, authorizing the investment of cash under the control of the court in bank stock, East India stock, exchequer bills, and 21. 10s. per cent, annuities, and upon mortgage of freehold and copyhold estates respectively in England and Wales, as well as in consolidated 3^. per cent, annuities, reduced 3/. per cent, annuities, and new 3/. per cent, annuities. (J) A still later enactment of the same session authorizes trustees, having trust money in their hands which it is their duty to invest at interest, at their discretion to invest the same in any of the Parliamentary stocks or public funds, or in government securities, and at their discretion to call in any trust funds invested in any other securities, and to invest the same on any such securities as aforesaid, and also from time to time at their discretion to vary any such investments as aforesaid for others of the same nature; provided that no such original investment as aforesaid (except in the 3^. per cent, consolidated bank annuities), and no such change of investment as aforesaid, shall be made where there is (/) Stat. 22 & 2.3 Vict. c. 35, s. 32. (/>) Stat. 23 & 24 Vict. c. 38, s. 10. (§•) Stat. 23 & 24 Vict. c. 38, s. 12. (i) Sect. 11. (j) See Equitable Reversionary Intere.?t Society v. Fuller, 1 John. & Hem. 379 ; Ro Langford, 2 John. & Hem. 458 ; Re Warde, 2 John. & Hem. 191. OF SETTLEMENTS OF PERSONAL PROPERTY. 361 a person under no disability entitled in *possession to re- p.^g-^-, ceive the income of the trust fund for his life or for a '- " term of years determinable with his life, or for any greater estate, without the consent in writing of such person. (A-) This last enact- ment, however, like the other provisions in the same act, extends only to persons acting under a deed executed, or a will executed or confirmed or revived by a codicil executed after the 28th of August, 1860, the date of the act.(^) It is doubtful whether the new East Indian loan of 1859 falls within the meaning of East India stock.(m) The consent of the persons for the time being entitled to the income of the property is generally required, in settlements, to any change of investment which the trustees may be authorized to make; and this consent is sometimes required to be in w-riting, and occasionally to be testified by deed. Where consent is re- quired, it must be given previously to or at the time of the change of investment;(n) for as the consent is required as a check upon the trustees, a subsequent consent, when the mischief may be done, is evidently unavailing. The person whose consent is required is not, however, the sole judge of the propriety of any change of investment: the trustee, by virtue of his office, has also a discretion ; and if he should consider the investment in- eligible, he may refuse to make it, although requested so to do by the person whose consent ought to be obtained.(o) But the terms of the instrument may require the trustees to change the investments at the request of any given person ; and in this case they will generally be bound *to act accordingly, unless r^2Q9'] the circumstances of the case should be such as were evi- dently not contemplated when the settlement was made.(7J) In settlements of personal property authority is sometimes given to the trustees to make investments in the purchase of (/,) Stat. 23 & 24 Vict. c. 14.5, s. 25. (/) Sect. 34. (m) Re Colne Valley and Hal.stead Railway, b Jur. N. S. 1123 ; 29 L. J. Chan. 33 ; 1 I)e Gex, Fisher & Jones, 53. (w) IJatenian v. Davis, 3 Madd. 98; (ireenham v. Gibbeson, 10 Ring. 3(53, E. C. h. R. vol. 25 ; Wiles v. Gresham, 2 Drewry, 258. {o) Lee V. Young, 2 You. & Coll. N. C. 532. (p) Boss V. (iod.sall, 1 You. (fe Coll. N. C. 017 ; Cadogan v. Earl of Essc.\, 2 Drewry, 227. 362 OF PERSONAL ESTATE GENERALLY. landed estates. As land devolves in a different manner from per- sonal property, it is obvious tliat a simple change of tlie property from personalty to land would in many cases materially dis- arrange the destination of the property. Thus if a person en- titled under the settlement to a reversionary interest in the settled fund should have died intestate, his administrator would be en- titled to such interest, so long as the property continued to be personal, but, on its being changed into real estate, it would shift to his heir at law. In order to obviate this inconvenience, it is so contrived that the lands to be purchased should, from the moment the purchase is made, be considered as personal prop- erty.^ To effect this object, the lands when purchased are 1 It is a well-established rule of equity, or purchase is not to be made until a future that where land is directed to be sold, and time, provided there is no contingency, upon thereby converted into money, it shall be the happening or not happening of which, considered as money ; and that money, which the intended conversion will be defeated ; is to be employed in the purchase of land, Heading r. Blackwell, 1 Baldw. R. Ififi; Fairly shall be regarded as real property ; Craig v. v. Kline. Penning. R. 551 ; Price v. Watkina, Leslie, 3 Wheat. R. 377; Peter, Exr., et al., 1 Dal. R. 8; Rinehart v. Harrison's Exrs., 1 V. Beverly et al., 10 Pet. R. 534: Hawley et Baldw. R. 177; Brothers v. Cartwright, 2 al. V. James et al., 5 Paige's Ch. R. 318; Jones's Eq. R. 113; Harcum v. Hudnall, 14 Smith et al. v. McCrary et al., 3 Ired. Eq. R. Gratt. R. 369 ; Hooker v. Gentry, 3 Met. 204; Golt et al., Exrs., v. Cook et al., 7 (Ky.) R. 363. But where the intended trans- Paige's Ch. R. 521 ; Kane v Golt et al , Ibid., formation is to be effected upon a contingency, S. C, 24 Wend. R. 641 ; The Commonwealth there will be no conversion until that contin- V. Martin's Exrs., &c., 5 Munf. R. 121 ; Pratt gency has happened : Evans v. Kingsberry, 2 V. Taliaferro, 3 Leigh's R. 419 ; Siter et al. v. Rand. R. 120 ; Storer v. Zimmerman, 21 Pa. McClanchan et al., 2 Gratt. R. 280 ; Reading St. R. 324; Cl.ay et al. v. Hart, 7 Dana's R. V. Blackwell, 1 Baldw. R. 166; Fairly v. 11; Nagle's Appeal, 13 Pa. St. R. 260; Kline, Penning. R. 561 ; Hurlt v. Fisher, 1 Bleight w Manufac. & Mechan. Bank, 10 Pa. Har. & Gill's R. 88; Leadenham's Exr. v. St. R. 132; Wright v. The Trustees of the Nicholson et al.. Id. 267; Morrow v. Bren- M. E. Church, 1 HofiF. R. 213; Henry v. izer, 2 Raw R. 185; Burr v. Sim et al., 1 McCloskey, 9 Wat. R. 142; Anewalt's Ap., Wh. R. 252 ; Allison, Exr., v. Wilson's Exrs., 42 Pa. St. R. 414 ; Ross v. Drake, 37 Id. 373. 13 Serg. & Raw. R. 332 ; Price v. "Watkins, ] Where land is directed to be sold for a par- Dai. R. 8 ; Rice v. Bixler, 1 Wat. & Serg. R. ticular purpose, and is sold accordingly, and 445 ; Willing v. Peters, 7 Pa. St. R. 287 ; Lo- there is a balance of money after the accom- rillard et al. v. Coster et al., 5 Paige's Ch. plishment of the purpose for which the sale R. 172; Drake v. Pell, 3 Edwd. Ch. R. 207; was made, that money will be considered as Rinehart v. Harrison's Exrs., 1 Baldw. R. land, unless the testator, donor, or other per- 177; Marsh v. Wheeler, 2 Edwd. Ch. R. 160; son by whose direction the conversion was Tazewell et al. v. Smith, Admr., 1 Rand. R. made, has clearly shown that it was his wish 313; Parkinson's Est., 32 Pa. St. R. 457; that the character of personalty should be Holland v. Craft, 3 Gray's R. 162; Lough- stamped upon the whole property; and this borough V. Loughborough, 14 B. Mon. R. rule applies equally, where a part of a fund 549 ; High v. Worley, 33 Ala. R. 196; For- is sufiRcient to accomplish a purpo.=e to be at- syth V. Rathbone, 34 Barb. R. 388, And tained through the purchase of land ; Craig this rule will operate, even though the sale v. Leslie, 3 Wheat. R. 577 ; Hawley et al. v. OF SETTLEMENTS OF PERSONAL PROPERTY. 363 directed to be held by the trustees upon trust to sell them, with the consent of the equitable tenants for life, during their lives, and after their decease at the discretion of the trustees. (§') This trust for sale converts the lands into money in the contemplation of equity; for it is a rule of equity, that whatever is agreed to be done shall be considered as done already. In the words of Sir Thomas Sewell,(r) " ISTothing is better established than this prin- ciple, that money directed to be employed "in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted; and *this in whatever manner r^-,r^n-i the direction is given, whether by will, by way of con- ^ tract, marriage articles, settlement, or otherwise, and whether the money is actually deposited or only covenanted to be paid, whether tJie land is actually conveyed or only agreed to be con- veyed. The owner of the fund or the contracting parties may make land money, or money land." And if land is clearly di- rected to be sold, the circumstance that the consent of some person or persons is required to the sale will not prevent the im- mediate conversion of the land into money in the contemplation of equity, although such a circumstance may often cause a long postponement of the period of its actual conversion. (5) Notwith- standing a trust for the sale of laud, if all the parties interested {q) See Appendix (B) . (r) In Fletcher v. Ashbiirner, 1 Bro. C. C. 499, approved by Lord Alvanley, in Wheldale V. Partridge, 5 Ves. 39fi, 397. See, also, Griffith v. Ricketts, 7 Hare, 299. {s) See Lechmere v. Earl of Carlisle, 3 P. Wms. 218, 219. James et al., 5 Paige's Ch. R. 318; Smith et but this rule of considering money as land, or al. V. McCrary et al., 3 Ired. Eq. R. 204; land as money, will not apply if the special The Commonwealth v. Martin's Exrs., 5 purpose for which the conversion is to be Munf. R. 121 ; by this last case, it seems, made fail ; neither does it i/pp/y, if the effect that the conversion will not be enforced, if it would ojierc/te an escheat." should operate injuriously upon the benefi- Conversion, in short, is a question of in- ciary, for, to quote the words of Judge Coul- tention ; and to effect it by will, the direction ter, '• Money directed to be employed in the to convert must be positive and explicit; purchase of land, and land directed to be Chew v. Nicklin, 45 Pa. St. R. 84; Edward's sold and turned into money, are to be con- Ap.,48Id. 144. AVhere by equitable conver- sidered as that species of property into which sion money is considered as land, it cannot in they are directed to be converted. ... It is any case retain its inheritable quality as real also an established principle, that, if a party estate, further than the first descent ; Dyer w. having such fund dies, it will go to his real Cornell, 4 Pa. St. R. 301 ; and the converse of or personal repiesentatives, as money or land, this is also the law. according as he himself would have taken it; 3G4 OF PERSONAL ESTATE GENERALLY. should be of full ag:c,(/) and if females un married, (?/) they may elect that the land shall not be sold ; and after such election tlie land will be considered as real estate in equity as well as at law.(:r) And the election of the parties need not be expressed in 80 many words, but may be inferred from any acts by which their intention is clearly shown. (i/)^ All properly drawn settlements of personal estate formerly contained a power for the trustees or trustee for the time being, acting in the execution of the trusts, to giv^e receipts for any money payable to them or him under the trusts, which receipts, it was declared, should effectually discharge the persons paying the money from all responsibility as to its application. The necessity of this provision arose from a rule of equity, by which any person who paid money to another, whom he knew to be r*9«4n nierely a trustee, was bound to see the money *applied *- -^ according to the trusts.(z) If, however, the trusts were of such a kind as to require time and discretion to carry them into effect, the receipt of the trustees would, from the nature of the case, have been an effectual discharge, without an express clause for this purpose. (a)^ But by a recent act of Parliament it (<) Van V. Barnett, 19 Ves. 102. (70 Oldham v. Hughes, 2 Atk. 452. (x) Davies v. Ashford, 15 Sim. 42. (y) Lingen v. Sowray, 1 P. Wms. 172 ; Cookson v. Reay, 5 Beav. 22; 12 CI. & Fin. 121. (2) Spalding v. Shalmer, 1 Yern. 301 ; Lloyd v. Baldwin, 1 Yes. Sen. 173. (') but it does not extend to a gift of mouey.(A-) Although a voluntary settlement may thus be defeated by cred- itors, yet, when once completed, it is binding on the settlor, who cannot, by any means, undo it.(^) Thus, in one case,(m) a maiden lady not immediately contemplating marriage, but thinking such an event possible, transferred a sum of stock into the names of trustees in trust for herself until she should marry, and, after her marriage, in trust for her separate use for her life, free from the control of any person or persons with whom she might inter- marry, and after her decease, upon trusts for the benefit of any such husband, and her child, or children by any husband or hus- bands. She afterwards, being still unmarried, filed a bill in Chancery, praying that the settlement might be delivered up to her to be cancelled, and that the stock might be ordered to be retransferred by the trustees. But the court held she was bound by the settlement she had made, and was not entitled to any as- sistance to release her from it.^ If, however, the object of the settlor is merely his own benefit, or convenience, the settlement will be revocable '''by him r-^cy^.-, at his pleasure. Thus where a man, without any com- L " J munication with his creditors, puts property into the hands of trustees for the purpose of paying his debts, his object is said to be, not to benefit his creditors, but to benefit himself by the pay- (g) See Cutten v. Sanger, 2 You. & Jerv. 459. {/i) Stat. 12 & 13 Vict. c. 106, s. 12(5, repealing stat. 6 Geo. IV, c. 16, s. 7-3, to the same effect. (i) Brown v. Bellari.s, 5 Mad. 53. (/-) Ex parte Shortland, 7 Ves. 88; Kensington v. Chandler, 2 Mau. & Selw. 36; Ex parte Skerratt, 2 Rose, 384. (/) Ellison V Ellison, 6 Ves. 656 ; Edwards v. Jones, 1 My. & Craig, 226 ; Newton V. Askew, 11 Beav. 145; Kekewich v. Manning, 1 De Gex, Mac. & Uord. 176; Bentley v. Mackay, 15 Beav. 12; Bridget. Bridge, 16 Beav. 315. (m) Bill V. Cureton, 2 My. & Keen, 403. See, also, Petre v. Espiana.sse, 2 My. A Keen, 496; McDonnell i;. Hesilrige, 16 Beav. 346; Donaldson v. Donaldson, 1 Kay, 711. ' See a7ite, p. 272, note 1. 378 OF PERSONAL ESTATE GENERALLY. meut of his dcbts.(??) lie may accordingly revoke the trust thus created,(o) so long as the creditors remain in ignorance of it.(p) This rule, however, though well established, seems to attribute to debtors a somewhat light estimation of the claims of their creditors; and there appears to be no disposition in the courts to extend it.{q) The statute of Elizabcth,(r) by which voluntary settlements of lauds and other hereditaments are void as against subsequent purchasers for valuable consideration, though it extends to chat- tels real,{.s) does not apply to purely personal estate.(/)^ A volun- tary settlement of personal estate cannot therefore be defeated by a subsequent sale of the property by the settlor. Settlements of any definite and certain principal sum of money, or share in the funds, or Bank, East India, or South Sea stock, or in the stock or funds of any other company or corporation, are (») Per Sir C. Pepys, M. R. 2 My. & Keen, 511 ; cited by Wigram, V. C, in Hughes v. Stubbs, 1 Hare, 479. (o) Garrard v. Lord Lauderdale, 3 Sim. 1 ; Acton v. Woodgate, 2 My. & Keen, 492 ; Ravenshaw v. Hollier, 7 Sim. 3 ; Law v. Bagwell, 4 Dru. & Warren, 398 ; Smith v. Keating, 6 C. B. 136, E. C. L. R. vol. 60 ; Driver v. Maudesley, 16 Sim. 511. {])) Browne v. Cavendish, 1 Jones & Lat. 606, 635 ; Griffith v. Ricketts, 7 Hare. 299, 307 ; Mackinnon v. Stewart, 1 Sim. N. C. 76, 89, 90 ; Harland v. Binks, 15 Q. B. 713, E. C. L. R. vol. 69 ; Smith v. Hurst, 10 Hare, 30. But see Cornthwaite v. Frith, 4 De Gex & Smale, 552. {q) See Wilding r. Richards, 1 CoU; 661 ; Siramonds v. Palles, 2 Jones & Lat. 489 ; Kir- wan V. Daniel, 5 Hare, 493, 499-501. (r) Stat. 27 Eliz. c. 4; Principles of the Law of Real Property, 56, 1st ed. ; 59, 2d ed. ; 62, 3d & 4th eds. ; 67. 5th ed. ; 71, 6th ed. (5) Co. Litt. 3 b ; 6 Rep. 72. (/) 2 My. & Keen. 512. 1 On the subject of voluntary settlements Leigh's R. 157; Bentley et al. v. Harris, of personal estate, and that their validity or Admr.. 2 Gratt. R. 357 ; Beckham v. Secrest, invalidity is, in this country, as a general 2 Rich. Eq. R 54; Worthington et al. v. thing, determined by the same rules which Shipley, 5 Gill's R. 445 ; Fleming v. Town- regulate such settlements of land, see Bayard send, 6 Geo. R. 103 ; Wilson v. Buchanan, 7 et al. V. Hoffman et al., 4 Johns Oh. R. 450 ; Gratt. R. 3-34 ; Smith v. Stern, 18 Pa. St. R. Bank U. S. et al. v. Huth, 4 B. Mon. R. 444 ; 360 ; McVicker v. May, 3 Pa. St. R. 227 ; Bohn V. Headley, 7 Har. & Johns. R. 257; Penrod v. Morrison, Admr., 2 Pa. R. 126; Toumin v. Buchanan's Exr., 1 Stew. R. 67; Clemens v. Davis, 7 Pa. St. R. 264; Streeper Backhouse's Admr. v. Jett's Admr., 1 Brock- v. Eckert, 2 Wh. R. 302 ; Stark v. Ward, 3 enb. R. .500 ; Thayer v Thayer et al., 14 Vt. Pa. St. R. 328 ; Forsyth v. Matthews, 12 Pa. R. 107 ; Davis v. Payne's Admr., 4 Rand. R. St. R. 100. .332; Huston, Admr., v. Cantrill et al., 11 OF JOINT OWNERSHIP AND JOINT LIABILITY. 379 HOW liable to an ad valorem *cluty of one-fourth per cent. |-*97c-| or five shillings per hundred pounds, on the amount of ^ the money, or the value of the stock or share settled, according to the table contained in the last Stamp Act,{u) with a progres- sive duty of ten shillings for every entire quantity of 1080 words beyond the first 1080. By a recent act of Parliament(x) provision has been made for charging certain duties on the succession to property upon the death of any person dying after the 19th of May, 1853. These duties are at the same rates as the legacy duty, of which an ac- count will be given in the chapter on Wills, increasing in propor- tion to the distance in consanguinity between the predecessor, from whom the interest succeeded to is derived, and the suc- cessor.^ *CHAPTER II. [*276] OF JOINT OWNERSHIP AND JOINT LIABILITY, There may be a joint ownership of any kind of personal prop- erty in the same manner as there may be a joint tenancy of real estate ;{a) and the four unities of possession, interest, title, and time, Avhich characterize a joint tenancy of real estate, apply also to a joint ownership of chattels. But as no estates can exist in per- sonal property, the distinctions which hold with respect to joint {//) Stat. 13 & 14 Vict. c. 97. A sum secured by a policy of life sissurance, has been held not to be a definite and certain sum within the meaning of this act; Sanville v. The Commissioners of Inland Revenue, 10 E.xeh. 159. (x) Stat. 16 & 17 Vict. c. 51. (a) See Principles of the Law of Real Property, p. 99, 1st ed. ; 104, 2d ed. ; 109, .3d & 4th eds. ; 114, 5th ed. ; 120, 6th ed. ' A provision similar to that referred to in of personal property. Sec. 126, and some the text, is contained in the Internal Revenue subsequent sees, of the same act, refer to the Law, being Act of Congress of March 3, 1865. succession of real estate, and the amount and The 124th and 125th sees, of said act, relate to manner of levying tax thereon, the tux upon legacies and distributive shares 380 OF PERSONAL ESTATE GENERALLY. estates for life, in tail, or in fee, tlo not occnr in a joint owner- ship of personalty. If personal property, wliotlicr in possession or in action, be given to A. and B. simply, tliey will be joint owners, having equal rights as between themselves, during the joint ownership, and being, with respect to all other persons than themselves, in the position of one single owner. Hence it fol- lows, that if a bond or covenant be given or made to two or more jointly, they must all join in -suing upon it;(6) and a release by one of them to the obligor is sufficient to bar them all.(c)^ As a (/;) Slingby's Case, 5 Rep. 18 b ; Petrie v. Bury, 3 Barn. & Cress. 353, E. 0. L. R. vol. 10; 1 Wms. Saund. 291 i. (c) 2 Rol. Abr. 410 (D), pi. 1, 5. ^ In general all the obligees or covenan- tees should join in suing upon a joint con- tract ; Eisenhart et al. v. 81aymaker, 14 Serg. & Raw. R. 163 ; Halliday v. Doggett et al., 6 Pick. R. 359; Williams et al. v. Ehringhaus et al., 2 Dev. R. 511 ; Blanch- ard V. Dyer, 21 Maine R. Ill ; Moody et al. V. Sewall, 14 Id. 295 ; Darling v. Simpson, 15 Id. 176; Jellisont). Lafonta, 19 Pick. R. 245 ; Archer v. Dunn, 2 Wat. & Serg. R. 360 ; Sims v. Tyre, 3 Brev. R. 249 ; Hays et al. V. Lasater et al., 3 Pike's R. 565 ; Archer V. Boyne, 3 Scam. R. 526 ; Richardson v. Jones, 1 Ired. R. 296 ; Bailey v. Powell et al., 11 Misso. R. 416 ; Sims et al. v. Harris, 8 B. Mon. R. 55 ; Strange v. Floyd, 9 Gratt. R. 474 ; and the joint owners of personal property, are properly joined in an action of replevin to recover possession ; McArthur v. Lane, 15 Maine R. 245 ; Hart v. Fitzgerald, 2 Mass. R. 509 ; provided their interests in the property are not separate and distinct; Chambers v. Hunt, 15 Pa. St. R. 343 ; and they may also join, in an action of trespass for an injury thereto ; Glover et al. v. Aus- tin, 6 Pick. R. 209 ; Pickering v. Pickering etal., 11 N. H. R. 141 ; Snioot v. AVathen, Admr., 8 Misso. R. 525. But all the parties plaintiffs need not be joined, provided there is a legal cause for omitting some, such as their death, coverture, or refusing to be joined ; Sneed v. Wiester, &c,, 2 Marsh. R. 283 ; Hays et al. v. Lasater, 3 Pike's R. 565 ; Strange v. Floyd, 9 Gratt. R. 474. So, where the moving cause of action, of two or more joint covenanteeB, is several, and not joint, each may maintain his several action on the covenant ; Blakey, Ac, v. Blakey et al., 2 Dana's R. 462 ; Bailey v. Powell et al., 11 Misso. R. 419; Sims et al. v. Harris, 8 B. Mon. R. 55 ; Catawissa R. R. Co. v. Titus, 49 Pa. St. R. 277 ; thus, where several were interested in a fund, and one was paid his share, it was held that the others were enti- tled to sue separately, the payment of the one being considered an acknowledgment on the part of the debtor, that they had several interests ; Parker v. Elder, 11 Hump. R. 547 ; and, where there are joint owners of a vessel, one may sue for his share, of the surplus pro- ceeds of a sale on execution against himself and the other owners ; Hopkins v. Forsyth, 12 Pa. St. R. 34. In the case of Mytinger v. Springer, 3 Wat. &. Serg. R. 405, where money was contributed by several individuals, and deposited in the hands of a stakeholder, as a w.nger upon the result of an election, it was held by Rogers, J., that, "If there were originally a part- nership, it being illegal, it would go for nothing, and each of the parties would re- cover only on his original right of action, and consequently for himself. The law will not recognize a partnership for an illegal purpose, and for that reason the court is bound to treat the transaction of partnership as if it had never been ;" and in the case of App V. Coryell, 3 Pa. R. 494, where a simi- lar principle was involved, the court said, " The contract being void, the money could be recovered only on the promise implied from the receipt of it to the plaintiff's use, OF JOINT OWNERSHIP AND JOINT LIABILITY. 381 further consequence of the unity of a joint ownership, the import- ant right of survivorship, which distinguishes a joint tenancy of real estate, belongs also to a joint ownership of personal property. Whether the subject of the joint ownership be a chattel real as a lease, or a chose in possession as a horse, or a chose in action as a debt or legacy, the surviving joint owner will be entitled to the whole, unaffected by any disposition which the deceased joint ♦owner may have made by his will, unless the joint ten- r,^n77-| ancy should have been previously served in the lifetime of *- both the parties. (lainlifrs with negli- nol under seal ; Benjamin et al. v. McConnell gence, agreed with the plaintids by a .-•imple 394 OF PERSONAL ESTATE GENERALLY. the others; and in this case, each of the remaining debtors will continue severally liable.(/) So he may covenant with one of the debtors never to sue him ; and in such a case he will retain his remedy against the others severally. (i<) On account of the several liability, the estate of a person who has become jointly and sever- (t.) Ex parte Gifford, 6 Ves. 807 ; Thompson v. Lack, 3 C. B. 540, E. C. L. R. vol. 54 ; Kearsley v. Cole, 16 Mee. & Wels. 136 ; Price v. Barber, Q. B. 1 Jur. N. S. 775 ; 4 E. & B. 760, E. C. L. R. vol. 82 ; Willis v. De Ciistro, 4 C. B. N. S. 216, E. C. L. R. vol. 93. (h) Lacy v. Kynaston, 2 Salk. 575 ; 2 Wins. Saund. 48, n. (1). contmet in writing, that if the latter would release T., the other carrier, it should not impair or affect any liability which he, F., might have incurred, or was subject to ; and thereupon T. was released accordingly ; it was held that F.'s agreement not being under seal, did not qualify the release, so as to pre- vent its operating the discharge of both F. andT. from theoriginal cause of action : Bron- son et al. v. Fitzhugh et al., 1 Hill's R. 185. But a covenant not to sue one of several joint, or joint and several debtors, will not operate as a release, but will only discharge the one with whom the covenant was made ; who may have his remedy if it should be bro- ken by joining him as defendant ; Tuckerraan et al. V. Newhalj, 17 Mass. R 581 ; Brown V. Marsh, 7 Vt. R. 320 ; Bank of Catskill v. Messenger et al., 9 Cow. R. 37 ; Harrison v. Close et al., 2 Johns. R. 44S ; Rowley v. Stoddard, 7 Id. 207 ; Walker v. McCulloch, 4 Grecnl. R. 421 ; Mason et al. v. Jonett's Admr., 2 Dana's R. 107 ; Reed v. Shaw, 1 Biackf. R. 245 ; Shed v. Pierce, 17 Mass. R. 623 ; Sewall v. Sparrow, 16 Id. 24 ; Rugglesr. Patten, 8 Id. 480 ; Crane, Admr., v. Ailing, 3 Green's R. 423 ; Durell v. Wendell et al., 8 N. H. R. 369 ; Goodnow v. Smith et al., 18 Pick. R. 414 ; McAllester et al. v. Sprague et al., 34 Maine R. 296 ; Fink v. Green, 5 Barb. S. R. 455 ; Bozinan v. The State Bank, 2 Eng. R. 328; Miller v. Fenton, 11 Paige's C. R. 19 ; Couch y. Mills etal., 21 Wend. R. 424 ; Browning & Co. v. Grady, Admr., 10 Ala. R. 999 ; Matthey v. Gaily, 4 Cal. R. 62 ; City of Carondelet v. De?noyer. 27 McT. R. 36 ; though this doctrine has been doubted ; Jo- nas V. Bank., 29 Conn. R. 25 ; and note a dis- tinction between a covenant not to sue for a limited time, and a covenant never to sue ; Thurston v. James, 6 R. I. R. 103 ; nor will a receipt in full to one joint debtor, for his share of the liability, effect the discharge of all ; Rowley v. Stoddard, 7 Johns. R. 207 ; Andrews v. Andrews et al., 1 Root's R. 72; Shotwell V. Miller, Coxe's R. 81 ; Rogers v. Hemstead, Kirby's R. 44 ; Shock v. Miller, 10 Pa. St. R. 401 ; and it has been doubted, whether it will effect the discharge of the one to whom it is given ; Buckingham v. Oliver, 3 E. D. Smith's R. 129; Griffith v. Grogan, 12 Cal. R. 317 ; nor can a discharge of one of several joint obligors by operation of law, relieve the other obligors ; Ward v. Johnson et al., 13 Mass. R. 148 ; nor a judgment ob- tained against one, without satisfaction ; Mc- Laurine v. Monroe, 30 Mo. R. 462 ; Kauff- man v. Fisher, 3 Grant's Cas. 302 ; but an ac- tual satisfaction of the debt, by one joint debtor, will release all ; Walker v. McCulloch, 4 Greenl. R. 421 ; and so of payment in full, by one of two or more joint trespassers, in satisfaction of the damage committed ; Gee v. Overby, 7 Eng. R 164. The law as regards joint trespassers or wrongdoers, seems to be the same with that of joint obligors, as respects the effect pro- duced by a release of one, or a covenant en- tered into with one to indemnify him from all legal proceedings ; Snow v. Chandler, 10 N. H. R. 92 ; Bronson et al. v. Fitzhugh et al., 1 Hill's R. 185 ; Smithwick v. Ward, 7 Jones's Law R. 64 ; Lovejoy v. Murray, Leg. Intell. July 6, 1866 ; but they may be sued separately; Gee V. Overby, 7 Eng. R. 164. Where all the joint obligors or covenantors are dead, the proper parties to proceed against, are the representatives of the last sur- vivor ; Beebe et al., Exrs., v. Miller, Minor's R. 364. OF JOINT OWNERSHIP AND JOINT LIABILITY. 395 ally bound is not discharged, by his decease in the lifetime of his co-debtors, but still remains liable to the entire debt as respects the creditor, and to a proportion of it as respects the surviving co-debtors. It has been recently enacted, that no co-contractor or co-debtor, whether liable jointly only, or jointly and severally, shall lose the benefit of the Statutes of Limitation by reason only of payment of any principal, interest, or other money by any other co-contractor or co-debtor. (i') One of the most usual means of incurring a joint and several liability is the entering into a partnership. At law the liability of partners is joint only, as to debts incurred by the partnership; so that they ought all to be joined as defendants to an action at law for recovering any such debt.(x) But a dormant partner, whose name *may or may not be known, may either be r*9Q/:.-| joined or not at the pleasure of the creditor,(j/y unless the L " J {v) Stat. 19 & 20 Vict. c. 97, s. 14, not retrospective ; Jackson v. Woolley, 8 E. & B. 784, E. C. L. R. vol 92. (.r) See Kice v. Shute, 5 Burr. 2011 ; 1 Wms. Saund. 291 b, n. (4). (y) Be Mautort v. Saunders, 1 Barn. & Adol. 398, E. C. L. R. vol. 20; Beckham v Drake, 9 Mee. & Wels. 79 ; 11 Mee. & Wels. 315. 1 A secret partner is as much governed by Beach v. Ilayward, 10 0. R. 455. On the the transactions of the acting partner, as if other hand, dormant partners, when discov- his name was used ; Shead y. Barrinton et al., ered, may be joined as parties defendant; 1 Stew. R. 134; but this law is confined to Griffith & Co. v. Buffum et al., 22 Vt R. 181 ; trade and commerce, and does not extend to Everett et al. v. Chapman el al., 6 Conn. R. speculation in the purchase of lands ; Pitts v. 347 ; Lea v. Guice, 13 Smed. & Mar. R. 657 ; Waugh et al., 4 Mass. R. 425. Reynolds v. Cleveland et al., 4 Cow. R. 282 ; An action may be sustained by the osten- but they need not be so joined ; Sylvester et sible partners, without joining those that are al. v. Smith, 9 Mass. R. 119 ; for a dormant dormant ; Lord v. Baldwin, 6 Pick. R. 350 ; partner is an allowable, not an essential par- Wilkes V. Clark, I Dev. R. 178 ; Shropshire t-. ty ; Desha et al. v. Holland, 12 Ala. R. 613 ; Shepherd, 3 Ala. R. 733 ; Monroe v.EzzeU, 11 Clark et al. v. Miller etnl., 4 Wend. R. 628 ; Ala. R. <,03 ; Clarkson v. Carter, 3 Cow. R. Brown v. Birdsall, 29 B;irb. R. 549 ; hence, 84 ; or the dormant partner may be joined as where in the case of a secret partnership, an coplaintifF: Rogers v. Kichline, 30 Pa. St. execution was levied on the goods in the R. 293 ; in Secor v. Keler, 4 Duer's R. name of the ostensible partner, it was held 410, which was an action for work and labor that it should not be postponed for a subse- done by the firm, it was held that he mu.st be quent one, in the names of both the partners ; joined ; but, the contrary has been held ; Brown's Appeal, 17 Pa. St. R. 480. Artisan's Bk. v. Treadwell, 34 Barb. R. 553 ; Where one takes a note from an ostensible Boardm.'in r. Keeler et al., 2 Vt. R. 05; partner, upon which a judgment is obtiiined, Clark et al v. Miller et al., 4 Wend. R. 628 ; an execution issued, and returned, " )iiill// but where the ostensible partners are dead, hniui,'''' it has been held, that the holder of the surviving dormant piirtner may sue alone ; the note will not be thereby barred from a 396 OF PERSONAL ESTATE GENERALLY. contract be under seal, in wliieh case, as the deed is itself the contract, and not merely evidence of \t,{z) those only can be sued on it who have sealed and delivered it. In equity, however, in favor of creditors, all partnership debts are considered to be both joint and several. On the decease of a ])artner, therefore, his estate will be liable in equity to all the partnership debts incurred previous to his decease ;((7) and the creditors may, if they please, resort in the first instance to the estate of the deceased, leaving it to his representatives to recover from the surviving partners their share of the debts.(6) It seems, however, that in analogy to the rule in bankruptcy, next stated, the separate creditors of the deceased partner would first be paid in full out of the estate, before its application to the payment of any of the debts of the partnersliip.(<:-) In the case of the bankruptcy of a trading-partnership, the rule which is always followed in the payment of the debts is, that the joint assets of the firm are in the first place liable to the part- nership debts; and that the separate estate of each partner is in the first place liable to his separate debts, which must be paid in full out of such separate estate, before any of it can be applied to- -^ wards payment of the debts of the partnership.((/)' *Any ^ "* -^ creditor of a partnership may, however, be a petitioning (z) Ante, p. 83. {(/) Devaynes v. Noble, 1 Meriv. 529, 56.3; 2 Russ. & Ry. 495. (/;) Wilkinson v. Henderson, 1 M. & Keen, 582; Braitlnviiite v. Britain, 1 Keen, 206; Thorpe v Jackson, 2 You. & Coll. 553 ; Way v. Basset, 5 Hare, 55. (c) Gray v. Chiswell, 9 Ves. 118 ; Brown v. Weatherby, 12 Sim. 6, 10 ; Ridgway v. Clare, 19 Beav. Ill ; Wliittingstall v. Grover, M. R. 10 W. R. 53. {fl) Ex parte Elton, 3 Ves. 238, 241 ; E.k parte Kensington, 14 Ves. 447 ; Ex parte Peake, 2 Rose, 54; Ex parte Harris, 1 Mad. 583 ; Ex parte Janson, 3 Mad. 229 ; Re Plummer, 1 Phil. 56 ; Ex parte Kennedy, 2 De Gex, M. & G. 228. suit against all the partners ; Watson et al. v. of the contract ftnd not discovered until after Owens et ul., 1 Richard. R. Ill; Sheey «;. suit. But see «?*<«, p. 282, note, and p. 285, Mandeville etal., 6 Cranch's R. 254; but this note. has been denied in Pennsylvania, in Smith et The admissions of a dormant partner, who al. V. Black, 9 Serg. & R. 142, which particu- is proved to be so, may be given in evidence larly noticing the case of Sheey v. Mande- to bind the firm ; Kaskaskia Bridge Co. v. ville, nevertheless decided in accordance with Shannon etal.,1 Gilm. R. 15 ; Shepherd v. what would seem to be the fixed legal princi- Ward, 8 Wend. R. 542. pie, that a judgment recovered against one ■ At law, partners have a right to dispose partner, is a bar to a subsequent suit against of their property as they please ; McDonald both (where there are two), though the new et al. v. Beach et al., 2 Bhickf. R. 55 ; Sigler defendant was a dormant partner at the time v. Knox Co. Bank, 8 0. R. (N. S.) 511 ; and OF JOINT OWNERSHIP AND JOINT LIABILITY. 397 creditor in respect of his debt, on the bankruptcy of any individ- ual member of the firm; and in that case he will be entitled to a separate or joint creditors may attach either separate or joint property ; Bardwell v. Perry et al., 19 Vt. R. 292 ; Jarvis et al., Admrs., V. Brooks et al., Admrs., 3 Fost. R. 131 ; but eauity will not allow a partner to dispose of his stock in trade, for the purpose of paying his own creditors, to the exclusion of those of the partnership ; Ferson v. Monroe, 1 Fost. R. 462 ; French v. Lovejoy, 12 N. H. R. 458 ; Hill V. Beach, 1 Beasley's R. 31 ; Sage v. Chollar, 21 Barb. R. 596 ; nor to sell, or mortgage, his undivided interest, in a specific part of the property belonging to the part- nership ; Lovejoy v. Bowers, 11 N. H. R. 404 j and any such attempt to appropriate the partnership property to his individual benefit will be regarded as a fraud upon his copartners ; Filley et al. v. Phelps et al., 18 Conn. R. 294 ; Rogers & Sons v. Batchelor et al., Admrs., 12 Pet. R. 221; Yale v. Yale, 13 Conn. R. 185. This is in accordance with that equitable principle, that partnership property is to be applied to the payment of partnership debts, before a separate creditor can be allowed to resort to it ; Lord v. Bald- win, 6 Pick. R. 350 ; Morrison v. Blodgett et al., 8 N. H. R. 248; Murray v. Murray et al., 5 Johns. C. R. 60 ; Conkling et al. v. The Washington University et al., 2 Md. C. Decs. 497; Pierce, Admr., et al., v. Tiernan et al., 10 Gill. & Johns. R. 253 ; McDonald et al. v. Beach et al., 2 Blackf. R. 55 ; White v. The Union Ins. Co., 1 N. & McCord's R. 557 ; Wilson etal. v. Conine, 2 Johns. R. 282 ; Mc- Culloch V. Dashiell, 1 Har. & Gill's R. 96 ; Tucker v. Oxley, 5 Cranch's R. 35 ; White v. Dougherty et al.. Mart. & Yerg. R. 309 ; Do- ner etal. V. Stauffer et al., 1 Pii. R. 198; Woodrop V. Ward, 3 Desauss. R. 203 ; Gar- diner et al. V. Smith, 12 La. R. 370; Eman- uel V. Bird, Admr., 19 Ala. R. 596 ; Grosve- nor & Co. V. Austin, 6 0. R. 103 ; Muir v. Leitch et al., 7 Barb. S. R. 341 ; Buchan v. Sumner, 2 Barb. C. R. 166 ; Christian v. Ellis, 1 Oratt. R. 396 ; Nicoll et al. v. Mumford, 4 Johns. C. R. 522 ; Deveau v. Fowler, 2 Paige's C. R. 400 ; Jackson v. Cornell et al., 1 Sandf C. R. 348 ; Murril et al. v. Neill et al., 8 How. R. 414; Washburn et al. v. The Bank of Bellows Falls et al., 19 Vt. R. 278 ; Wilder et al. v. Keeler et al., 2 Paige's C. R. 167 ; Smith v. Barker et al. 10 Maine R. 158 ; Lucas et al. v. Atwood et al., 2 Stew. R. 378 ; Glum V. Gill, 2 Md. R. 15 ; Burtus v. Tis- dale et al., 4 Barb. S. R. 571 ; Linford v. Linford, 4 Dutch. R. 113; Wintersmith v. Pointer, 2 Met. (Ky.) R. 457. But this, like every other general rule, ad- mits of exceptions ; and it is hardly, indeed, susceptible of strict application, in any cases but those of bankruptcy, insolvency, and exe- cution. The consequences of its application to partnerships would be highly injurious to trade, and embarrassing to justice It has been repeatedly settled here, as well as in England, that the partner may be sued for separate debts, that the partnership effects may be taken in execution and sold by moie- ties ; and that the purchaser of the moiety, under the execution, shall be considered as tenant in common with the partner ;" Me- Carty I'. Emlen, 2 Dal.R. 278. "Each part- ner is entitled to the possession of the partner- ship property ; if one excludes the other, no action at law lies — the remedy is in equity. So, if the sheriff, by virtue of an execution against one of several partners, takes posses- sion of the property, an action at law, I appre- hend, does not lie against him. The court from which the execution issued would stay pro- ceedings upon it, to give time to have an ac- count taken in equity ; but if no such stay is obtained, the ofl5cer can sell the right of the partner who is defendant in the execution. According to the rule in equity, the partner- ship accounts should all be liquidated before a sale on execution, . . . but if the sale should be made, and the purchaser should take the property, Vfould he be a trespasser ? or would he not be tenant in common with the other partner, of the partnership property, subject to the claims of the creditors of the partnership? The sheriff or other officer, in making a levy, and taking the property to a place of safe deposit, is surely not a tres- passer ;" Scrugham v. Carter, 12 Wend. 11. 133; Hughes V. Boring, 10 Cal. R. 81. That the piirtner.vhip giiod.x niny be nt- 198 OF TERSONAL ESTATE GENERALLY. dividend on his debt out of the estate of such bankrupt ratably "with his separate creditors. (c) And the other partnership credi- (e) Ex parte Ackerman, 14 Ves. 604 j Ex parte Detastet, 17 Ves. 247. tached, or levied upon under an execution, for the separate debt of one of the partners, is not doubted ; Bradbury v. Smith, 21 Maine R. 122 ; Douglass v. Winslow, 20 Id. 89 ; Reed v. Johnson, 24 Id. .322 ; Reed v. Shepardson, 2 Vt. R. 120 ; Sehatzell & Co. v. Bolton, 2 McCord's R. 478 ; Knox v. Schep- ler, 2 Hill's R 595 ; Morgan v. Watniough, 5 ■\Vhart. R. 525; Dow. Admr., v. Sayward, 14 N. H. R. 9 ; Clark v. Lyman, Admr., 8 Vt. R. 290 ; Whitney v. Ladd, 10 Id. 165 ; Bur- rail V. Acker, 23 Wend. R. 606 ; Place v. Sweetzer et al., 16 0. R. 142 ; Clark v. Allee, 3 Barring. R. 80 ; Knox et al. v. Summers, 4 Yeat. R. 477 ; Andrews v. Keith, .34 Ala. R. 722 ; Wiles v. Maddox, 26 Mo. R. 77 ; but the preponderance of authority would seem to determine, that the sheriff cannot take the goods out of the possession of the other part- ners j Silter et al. v. Walker, 1 Freem. C. (Missi.) R. 77 ; Deal v. Bogue, 20 Pa. St. R. 233 ; Newman et al. v. Bean, 1 Tost. R. 93 ; Thomas v. Lusk, 13 La. An. R. 277 ; and cases above cited ; and he can only sell the interest of the partner who is defendant in the execution ; Doner et al. v. StaufTer et al., Haskins v. Everett, 4 Sneed's R, 631 ; which has been held in a case where the sheriffs sale was by sample ; Treadwell v. Roscoe, 3 Dev. R. 50 ; but the sheriff should levy upon " all the partnersldp effects, . . . because the moie- ties are undivided ; for if he seize but a moiety, and sell that, the other partner will have a right to a moiety of that moiety ; but he must seize the whole, and sell a moiety thereof undivided, and the vendee will be ten- ant in common with the other partner ; Slaver V. White et al., 6 Munf. R. Ill ; Phillips v. Cook, 24 Wend. R. 393 ; Scrugham v. Carter, 12 Id. 133. Where a sale has been made un- der such an execution, the proceeds must be paid over to the execution creditor, and the recourse of the partners, or of the creditors of the firm, is against the partnership prop- erty, for the purchaser has only acquired an interest in the assets, after the payment of the partnership debts and liabilities ; Phillips v. Cook, 24 Wend. R. 393 ; Wilson et al. v. Co- nine, 2 Johns. R. 282 ; Doner et al. v, Stauf- fer et al., 1 Pa. R. 198 ; Lothrop v. Wight- man, 41 Pa. St. R. 297. But an attachment by a creditor of one of the partners, will not prevail against a subsequent attachment of a joint creditor ; Pierce v. Jackson, 6 Mass. R. 242 ; Allen et al. v. Wells et al., 22 Pick. R. 455 ; nor will it be good against partner- ship property in the hands of a creditor of the firm, who may retain for his debt ; Morgan v. Watmough, 5 Whart. R. 525 ; and see Clark V. Allee, 3 Earring. R. 80. That the sheriff in an execution against the partnership property, for a debt due by an individual partner, "can sell only the actual interest which such partner has in the part- nership property, after the accounts are set- tled, or subject to the partnership debts, which are first to be paid," has been repeat- edly decided j Jarvis v. Hyer et al., 4 Dev. R. 364; Barber v. The Hartford Bank, 9 Conn. R. 407; Lynden v. Gorham et al., 1 Gallis's R. 367 ; Fisk v. Herrick, 6 Mass. R. 271 ; Church et al. v. Knox et al., 2 Conn. R. 5)4; Brewster et al. v. Hammett et al., 4 Id. 240 ; In the matter of Smith, 16 Johns. R. 102 ; Nicoll et al. v. Mumford, 4 Johns. C. R. 325 ; Goodwin v. Richardson, Admr., 11 Mass. R. 472 ; Gibson v. Stevens, 7 N. H. R. 352 ; Moody v. Payne, 2 Johns. C. R. 548 ; Knox V. Schepler, 2 Hill's R. 596 ; Doner et al. V. Stauffer et al., 1 Pa. R. 198 ; Wilter v. Richards, 10 Conn., R. 37 ; Filley et al. v. Phelps et al., 18 Conn. R. 294; Rogers & Sons V. Batchelor et al., Admrs., 12 Id. 221 ; Yale V. Yale, 13 Conn. R. 185 ; Burtus v. Tis- dale, et al., 4 Barb. S. R. 571 ; Clark v. Al- lee, 3 Harring. R. 80 ; Treadwell v. Roscoe, 3 Dev. R. 50 ; Merrill et al. v. Rinker, 1 Baldw. R. 534 ; Sitler et al. v. Walker, 1 Freem. C. (Missi.) R. 77; Deal r. Bogue, 20 Pa. St. R. 233; Lucas v. Laws, 27 Id. 211 ; Nixon V. Nash, 12 0. (N. S.) R. 647 ; this in- terest of the individual partner, is his share of the surplus after the payment of the partner- ship debts, and settlement of the partnership equities: Newman et al. v. Bean, 1 Fost. R. 93 ; Morrison v. Clodgett et al., 8 N. H. R. OF JOINT OWNERSHIP AND JOINT LIABILITY. 399 tors may prove their debts on such separate bankruptcy in order to have a vote in the choice of creditors' assignees, and to he 248; Nicoll et al. v. Mumford, 4 Johns. C. K. 525; White v. Dougherty et al., Mart. & Yerg. K. 309 ; Doner et al. v. Stauffer et al., 1 Pa. R. 198; Witters. Richards, 10 Conn. R. .37 ; Filley et al. v. Phelps et al., 18 Id. 294 ; United States v. Huck et al., 8 Pet R. 271 ; Rogers & Sons v. Batchelor et al., Admr., 12 Id. 221 ; Yale v. Yale, 13 Conn. R. 185 ; Buchan v. Sumner, 2 Barb. C. R. ]66; Sutcliflfe v. Dohrman, 16 0. R. 181; Place V. Sweetzer et al.. Id. 142 ; Clark v. Alice, 3 Harring. R. 80 ; Sitler et al. v. Walker, 1 Freern. C. R. 77 ; Atwood v. Mere- dith, 37 Missi. R. 635 ; Pitman v Robicheau, 14 L. An. R. 108 ; this is all that a partner can pass by assignment; Rodriguez -«. Heffer- man, 5 Johns. C. R. 417 ; Nicoll et al. v. Mumford, 4 Id. 525 ; Doner et al. v. Stauffer et al., 1 Pa. R. 198 ; Burtus v. Tisdale et al., 4 Barb. S. R. 671 ; and the purchaser becomes a tenant in common with the remaining part- ners ; Gilmore v. The N. A. Land Co. et al.. Pet. C. C. R. 460 ; Phillips z-. Cook, 24 Wend. R. 393 ; McCarty v. Emlen, 2 Dal. R. 278 ; Slaver v. White et al., 6 Munf. R. Ill ; Sit- ler et al. V. Walker, 1 Freem. C. R. 77 ; Remheimer v. Hemingway, 35 Pa. St. R. 432. The rule that partnership assets are to be applied to the payment of the partnership debts, before the creditor of one of the part- ners can derive any benefit therefrom, arises from the equities subsisting between the partners, and not from any preference given to the joint creditors; Hoxie v. Carr et al., 1 Sumn. R. 171 ; Doner et al. v. Stauffer et al., 1 Pa. II. 198; Allen et al. v. The Centre Valley Co. et al., 21 Conn. R. 130 ; Wash- burn et al. V. The Bank of Bellows Falls et al., 19 Vt. R. 278 ; Reese et al. v. Bradford et al., 13 Ala. R. 837 ; Bardwell v. Perry et al., 19 Vt. R. 292 ; Glenn v. Gill, 2 Md. R. 15; Yearsley's Est., 1 Am. L. Reg. 636; Backus V. Murphy. 38 Pa. St. R. 397 ; Potts V. Blackwell, 4 Jones's Eq. R. 58 ; Iluskill V. Johnson, 24 Geo. R. 825 ; Miller v. Estill, 5 0. R. (N. S.) 508 ; or, to use the words of Judge Lane, in Grosvenor & Co. v. Austin's Admr., 6 0. R. 112, a copartnership "credi- tor, i.s permitteda specific preference, to sub- ject that joint fund to the payment of his joint claim, or debt, and this, not because the creditors' rights are enlarged by the ex- istence of the joint fund, but because the interests of the partners are so connected with its distribution, that it is necessary to adopt this rule, to secure the rights of the debtors between themselves. Hence the doctrine has been introduced, that the part- nership property should be first applied in satisfaction of the partnership debts ; not for the creditors' sake, but because there is a fund, which both parties have a right recipro- cally, to apply for the benefit of a third party;" and, with similar reasoning the case of Rice v. Barnard et al., 20 Vt. R. 479, decided, that " the right of partnership creditors, to claim a preference over the credi- tors of the individual members of the firm, in the distribution of the partnership prop- erty, is wholly dependent upon the right of the individual partners, to enforce a lien upon the partnership funds for the payment of the partnership liabilities, before the indi- vidual debts ; and if the contract of partner- ship be of such a nature, that the partners can enforce no such right as between them- selves, the partnership creditors can claim no such preference." But in Cammack v. Johnson et al., 1 Green's C. R. 167, the chancellor seemed to be of a difi"erent opinion, ruling, that "in an open firm, the credit is given to the firm, and to the goods they are possessed of, and a partnership creditor shall be first paid out of them ; but, if the partner be unknown, the credit is given to the visible partner only, and the goods in his possession are supposed to be his own, and in such case, the discovery of such latent partner, cannot give any preference to a partnership creditor. As between the partners themselves, I see no reason to make any distinction in their rights, whether they are dormant or not ; but as to the public, it is not only highly proper, but necessary, to prevent injustice towards creditors, that this difference should be observed." The weight of authority, however, is against the case last cited ; and hence, it would seem to follow, that if the 400 OF PERSONAL ESTATE GENERALLY. heard against tlie order for the bankrupt's discharge ;(/) but they (J) Stat. 12 & 13 Viet. c. 106, s. 140, repealing stats. 6 Geo. IV, c. 16, s. 62, and 5 & 6 Vict. c. 122, s. 39, to the same eflfect. See ante, pp. 146, 147. partnership equity, as between the individual partners, was, from any cause, to cease, the preferred lien of the joint creditors, would also expire ; and this we find to be the fact, for, where one partner, there being two, sells his interest to the other, the lien of the joint creditors is gone ; Glenn v. Gill, 2 Md. R. 15 ; ^and see also the opinion of Chief Justice Gibs'on, in the ease of Doner et al. v. StauflFer et al., 1 Pa. R. 198; but this has been doubted ; see Conroy v. Woods, 13 Cal. R. 626 ; Cooper's Ap., 26 Pa. St. R. 262, in which last case it was decided, that where partnership property was sold on separate executions against the individual partner^, at the same time, by a joint sale, it leaves the interests standing in the proceeds, as it ex- isted in the property, at the time of the levy. Joint creditors may, however, resort to the separate property of the individual partners, before the payment of the separate creditors, for there is no subsisting equity to interfere with their claim, as was held in the ease of Allen et al. v. Wells et al., 22 Pick, R. 455. "It is urged, however, on the part of the defendants, that as this court, as a court of law, have long since recognized the principle, that an attachment of the goods of a partner- ship, by a creditor of one of the partners, is not valid as against an after attachment by a partnership creditor, it should also adopt the converse of the proposition, giving a like preference to separate creditors in respect of the separate property. But we think that there is a manifest distinction in the two cases. The restriction upon separate credi- tors as to the partnership property, arises not merely from the nature of the debt at- tempted to be secured, but also from the situa- tion of the property proposed to be attached. In such a case a distinct moiety or other pro- portion, cannot be taken and sold, as one partner has no distinct separate property in the partnership eflFects. His interest embraces only what remains upon the final adjustment of the partnership concerns. But on the other hand, a debt due from the copartner- ship, is the debt of each member of the firm, and every individual member, is liable to pay the whole amount of the same, to the creditor of the firm. In the case of the co- partnership, the interest of the debtor is not the right to any specific property, but to a residuum, which is uncertain and contingent, while the interest of one partner in his un- divided property, is that of a present absolute interest in the specific property. Each sepa- rate memberof the copartnership, being thus liable for all debts due from the copartner- ship, and no objection arising from any in- terference with the rights of others — as joint owners, it seems necessarily to follow, that his separate property may be well adjudged to be liable to be attached, and held to secure a debt due from the copartnership;" and see also, Bardwell v. Perry et al., 19 Vt. R. 292, and the cases subsequently cited ; but see to the contrary, Jarvis et al., Admrs., V. Brooks et al., Admrs., 1 Fost. R. 141. Where, however, a firm is bankrupt, or in- solvent, or a voluntary assignment for the benefit of creditors has been made, or there are other circumstances necessarily causing an application of the principles of equity, the separate property is to be first applied to the payment of the individual creditors, before the partnership creditors can resort to it, and under such circumstances the rule is, that in cases of distribution, partnership funds are first applicable to partnership debts, and private funds to private debts ; Wood- rob V. Ward, Exrs., 3 Desauss. R. 203 ; Hall V. Hall, 2 McC. C. R. 302 ; Tunno v. Treze-. vant, 2 Desauss. R. 270 ; Egbert et al. v. Wood et al., 3 Paige's C. R. 517; Murril et al. V. Neill et al., 8 How. R. 414; Emanuel V. Bird, Admr., 19 Ala. R. 596 ; McCulloch V. Dashiell, 1 Har. &, Gill's R. 96 ; Cleghorn V. The Insurance Bank of Columbus, 9 Geo. R. 319 ; Payne v. Matthews, 6 Paige's C. R. 20 ; Jackson v. Cornell et al., 1 Sandf. C. R. 348 ; Wilder et al. v. Keeler et al., 3 Paige's C. R. 167; Bell et al., Exrs., v. Newman, Admr., 5 Serg. & Raw. R. 78; Black's Ap., 44 Pa. St. R. 509 ; Walker v. Eyth, 25 Id. 216 ; Tingizer's Ap., 28 Id. 524; Crooker v. OF JOINT OWNERSHIP AND JOINT LIABILITY. 401 can receive no dividends till the separate creditors have been paid in full. But if any creditor has a joint and several security, which would enable him, at law, to sue any partner severally, he may, at his option, prove his debt against the separate estate of any such partner instead of against the firm jointly ;(^) but he cannot prove against both together.(A) The rule that the joint assets of the firm are in the first place liable to the partnership debts applies equally where there has been a change in the part- nership previous to the bankruptcy. The stock handed over to the new firm is primarily liable to all the debts incurred by them ; and the creditors of the old firm must first have recourse to such assets, if any, as may still belong to the old firm, and cannot touch the. property of the new partnership till all its creditors have been fully paid.(?) The addition or withdrawal of a part- ner to or from a firm in diflSculties may thus occasion serious detriment to its creditors.^ The Bankruptcy Act, 1861, provides, that if any *debtor shall, at the time of adjudication, be liable upon any bill ■- J of exchange, or promissory note in respect of distinct contracts, as member of two or more firms carrying on separate and dis- (g) Ex parte Hay, 15 Ves. 4. (A) Ex parte Bevan, 10 Ves. 107 ; Ex parte Husbands, 2 Glyn & Jam. 4. (i) Ex parte Freeman, Buck. 471 ; Ex parte Fry, 1 Glyn & Jam. 9(i ; Ex parte Janson, 3 Mad. 229 j Ex parte Sprague, 4 De Gex, Mac. & Gord. 866. Crooker, 46 Maine R. 250 ; Treadwell v. 28 ; but in New York, by statute, even in Brown, 41 N. H. R. 12 ; Toombs v. Hill, 28 cases of insolvency, &c., a joint creditor may Geo. R. 371 ; Tillinghast v. Champlin, 4 R. proceed against the separate property of an I. R. 173 ; Van Wagner f. Chapman, 29 Ala. absconding debtor ; In the matter of Chip- R. 172 ; Pahlman v. Graves, 26 111. R. 405 ; man, 14 Johns. R. 217 ; In the matter of and in Emanuel v. Bird, Admr., svpra, it Smith, 16 Id. 102; Robbins et al. v. Cooper was held, that when surviving partners are et al., 6 Johns. C. R. 186; and see also, insolvent, and there is no joint fund to which Dahlgreen, Admr., v. Duncan et al., 7 Smed. the partnership creditors may resort, they & Mar. R. 280. are entitled to share in the assets of the de- In the case of Brinkerhoff v. Marvin, 5 cea.sed partner pari passu with his separate Johns. C. R. 320, it was held, that "where creditors ; and see McCulloch v. Dashiell, 1 a creditor has separate judgments against Har. & Gill's R. 90 ; the mere insolvency of each of two partners, the partnership prop- a firm is sufficient to defeat an attachment erty will be bound, to the same extent as if made by a creditor of one of the firm, al- the amount of both judgments had been in- though the joint creditors have commenced eluded in a joint judgment for the whole, no action for the recovery of their debts; against both parties." Commercial Bank v. Wilkins, 9 Maine R. i See ante, p. 117, note 1. 26 402 OF PERSONAL ESTATE GENERALLY. tinct trades, and having distinct estates to be wound up in bank- ruptcy, or as a sole trader and also as a member of a firm, the circumstance that such firms are in whole or in part composed of the same individuals, or that the sole contractor is also one of the joint contractors, shall not prev(?nt proof and receipt of dividend in respect of such distinct contracts against the estates respect- ively liable upon such contracts. It also provides that, in every case where joint and separate estates have to be administered, and where the court shall not otherwise direct, dividends of the joint and separate estates shall be declared at one and the same sitting.(j) But the general rules with respect to the payment of the joint and several creditors do not appear to be altered. The liability to the debts of a partnership may be incurred by being an «ostensible partner, although no share of the profits be received. Thus, if a person allow his name to be used as one of a firm,(A') or to be painted over the door of a shop,(?) he will be liable to the debts of the firm; for credit may thus be given to the firm on the strength of his character as a solvent person. On the same principle, if a person have once been known to be a partner in the firm,(7n) his liability to its debts will continue after his withdrawment, unless he takes proper means to inform the creditors that he has ceased to be a partner. (n) But the circum- stance of the name of a *deceased partner remaining in *- -■ the firm will not render his estate liable to the debts of the survivors. (o) And if a trader direct by his will that his trade shall be carried on by his executor, the executor, who ostensibly carries on the trade, will be liable for the debts he may thereby incur as fully as if he were carrying on the trade for his own benefit ;(^) but so much only of the estate of the testator will be liable to such debts as he may have directed to be employed in (j) Stat. 24 & 25 Vict. c. 134, ss. 152, 177. (/) Parkin v. Carruthers, 3 Esp. 248 ; Young v. Axtell, cited 2 H. Black 242. (/) See Mclver v. Humble, 16 East, 169, 174. (?«) Evans v, Drummond, 4 Esp. 89 ; Brooke v. Enderby, 2 Brod. & Bing. 70, E. C. L. R. vol. 6 ; 4 Moore, 501 ; Carter v. Whalley, 1 Barn. & Adol. 11, E. C. L. R. vol. 20. (71) Godfrey v. Turnbull, 1 Esp. 371 ; Mclver v. Humble, 16 East, 169. (o) Vulliamy v. Noble, 3 Mer. 614; Webster w. Webster, 3 Swanst. 490, n. {p) 10 Ves. 119. And at law he will be liable, though his name do not appear; Wight- man V. Townroe, 1 Mau. & Selw. 412. OF JOINT OWNERSHIP AND JOINT LIABILITY. 403 the business.(5^) The rest of the testator's estate is held to be exempt, on the ground of the great inconvenience which would arise from holding: it liable after its distribution among-st the leo-- atees. But in strict principle, this exemption is at variance with the rule next stated, that a liability is incurred by any participa- tion in the profits. A liability to the debts of a partnership is also incurred by a participation in the profits, although the circumstance of such participation may be unknown to the creditor8.(r) Thus, if a person place money in a partnership,(5) or leave it there on re- tiring,(^) with a stipulation to have a compensation for it, under whatever name, subject to abatement or enlargement as the profits may fluctuate, he will be liable as a partner. If, however, he leaves no money in the concern, but is to receive a compensa- tion for his services, or otherwise, a nice distinction is then drawn between taking a share of the profits as such, and taking a percentage upon, *or a salary varying with, the profitg. p^.^Q^,-, He who takes a share of the profits as such is liable as a '- " -' partner;(i<) but he who takes an equivalent in the shape of per- centage or salary, though varying with the profits, escapes the liability. (r)* And if a trading concern be carried on for the (y) Ex parte Garland, 10 Ves. 110; Ex parte Richardson, Buck, 202; Cutbush v. Cut- bush, 1 Beav. 184; Re Butterfield, 11 Jurist, 955; Kirkman v. Booth, 11 Beav. 273; Mc- Neillie v. Acton, 4 De Gex, M. & G 744. (r) Beckham v. Drake, 9 Mee. & Wels. 79 ; 11 Mee. & Wels. 315. (s) Grace v. Smith, 2 Wm. Black. 998, 1001 ; Waugh v. Carver, 2 II. Black. 235. (t) Re Colbeck, Buck, 48. (?«) Ex parte Rowlandson, 1 Rose, 89, 91 ; Barry v. Nesham, 3 C. B. 641, E. C. L. R. vol. 54 : Heyhoe v. Burge, 9 C. B. 431, B. C. L. R. vol. 67 ; see, however, Rawlinson v. Clarke, 16 Mee. & Wels. 292. (u) Ex parte Hamper, 17 Ves. 403 ; Pott v. Eyton, 3 C. B. 32, E. C. L. R. vol. 54 ; Stocker v. Brockelbank, 3 Mac. & Gord. 250. 1 Individuals who have neither a mutual have a property in the capital, to make him interest in the capital invested in business, such ; Hodges v. Daves & Co., 6 Ala. R. 217 ; nor are mutually to share the losses that Dob et al. r. Halsey, 16 Johns. R. 34; for a may happen, cannot be partners ; Lowry v. partnership may be formed by capital fur- Brooks, 2 McCord's R. 421 ; but, where the nished by one, and skill and labor by another, right of a person to receive profits, proceeds provided the profits be divided between them, from hi.s having an interest in the capital, it not as a compensation to the one who has will constitute him a partner ; Ogden, Admr., bestowed his skill and labor, but as profits; V. Astor et al., 4 Sandf. S. R. 311 ; Vassar Everett v. Coe, 5 Denio's R. 180; Simpson et al. V. Camp et al., 14 Barb. S. R. 341 ; it et al. v. Feltz, 1 McCord's R. 218; Ward is not essential, however, that one should v. Thompson, 22 How. U. S. R. 330 ; neither 404 OF PERSONAL ESTATE GENERALLY. benefit of creditors, tlie creditors will not, from the mere cir- cumstance of their debts being paid out of the profits, be liable as partners for the debts incurred.(.r) (x) Wheatoroft v. Hickman, H. of L., 9 C. B. N. S. 47, E. C. L. R. vol. 99. is it necessary, in order to be partners, that all should have an equal interest j Ilodgman V. Smith, 13 Barb. S. R. 302 ; Motly v. Jones et al., 3 Ired. C. R. 144 ; but, the law will presume their interests are equal unless the contrary is shown ; Roach v. Perry, 16 111. R. 37 ; Stein v. Robertson, 30 Ala. R. • 286 ; Moore v. Bare, 11 Iowa R. 198. And one who contracts for a share of the profits of a concern, as profits, will be a part- ner; Chase, Admr., v. Barrett et al., 4 Paige's C. R. 148 ; Price & Co. v. Alexander & Co., 2 Greene's R. 127 ; Denny et al. v. Cabot et al., 6 Metcf. R. 89 j Judson et al. v. Adams, Ac, 8 Cush. R. 562 ; Griffith & Co- v. Buffam et al., 22 Vt. R. 181 ; Heimstreet v. Howland, 5 Denio's R. 68 ; Wadsworth v. Manning et al., 4 Md. R. 69 ; Barrett v. Swann et al., 17 Maine R. 180; Doak v. Swann et al., 8 Id. 170; Cox et al. v. Delano, 3 Dev. R. 89; Holt 6 Co. V. Kernodle, 1 Ired. R. 202 ; Brock- away v. Burnap, 16 Barb. S. R. 309 ; Cats- kill Bank v. Gray, 14 Id. 472; Belknap et al. V. Wendell, 1 Fost. R. 175 ; Pattison et al. V. Blanchard, 1 Seld. R. 186 ; Hodgman v. Smith, 13 Barb. S. R. 302; Emanuel v. Draugher et al., 14 Ala. R. 306 ; Hodges v. Dawes & Co., 6 Id. 217 ; Simpson et al. v. Feltz, 1 McCord's C. R. 218; Solomon v. Solomon, Exrx., 2 Kelly's R. 18 ; Bowman et al. V. Bailey, 10 Vt. R. 170; Boardman v. Keeler et al., 2 Id. 65 ; Kellogg v. Griswold, 12 Vt. R. 291 ; Gregory et al. v. Dodge et al., 14 Wend. R. 593 ; Noyes v. (fushman et al., 25 Vt. R. 396 ; a community of profits, there- fore, as a compensation, or commission, and not joined with a participation in the losses, will not make a partnership ; Fitch v. Hail, 25 Barb. R. 13 ; Polk v. Buchanan, 5 Sneed's R. 721 ; Williams v. Soulter, 7 Clarke's R. 435 ; but it seems that, as regards third per- sons, the mere perception of profits is sufl^cient to make a partnership; Bromley v. Elliott, 38 N. H. R. 287 ; Fitch v. Harrington, 13 Gray's R. 468 ; Wait v. Brewster, 31 Vt. R. 516 ; Chapman v. Devereaux, 32 Vt. R. 616 ; Berthold v. Goldsmith, 24 How. (U. S.) R. 636; in other words, there will be a copart- nership, when each has such an interest in the profits as will entitle him to an account, and give him a specific lien on the fund for the payment of the balance of his account : Champion v. Bostwick, 18 Wend. R. 680, S. C. 11 Id. 571 ; Conkling et al. v. The Wash- ington University et al., 2 Md. C.. Decs. 497; Pierce, Ailmr., et al. v. Tiernan et al., 10 Gill & Johns. R. 253; Hodges v. Dawes & Co., 6 Ala. R. 217; Hodges v. Hollman, 1 Denio's R. 50 ; Bowman et al. v. Bailey, 10 Vt. R. 170 ; McCauley v. Cleveland, 21 Mo. R. 438; Brigham v. Dana, 29 Vt. R. 1. Hence, where a person is to receive, as wages, a compensation graduated according to a percentage of the profits, it will not make him a partner; Nutting v. Colt, 3 Halst. C. R. 539 ; Perrine v. Hankinson, 6 Halst. R. 181 ; Ogden, Admr., v. Astor et al., 4 Sandf. S. R. 311 ; Burkle v. Eckart, 1 Denio's R. 337; Price & Co. v. Alexander & Co., 2 Greene's R. 427; Ambler v. Beverly, 6 Vt. R. 119; Baxter et al. v. Rodman, 3 Pick. R. 435 ; Denny et al. v. Cabot et al., 6 Mete. R. 89 ; Dunham v. Clayton, 1 Pa. St. R. 255; Potter v. Moses et al., 1 R. I. R. 430 ; Bartlett v. Jones, 2 Strobh. R. 471 ; Cofiin V. Jenkins, 3 Story's R. 108; Clement V. Hadock, 13 N. H. R. 190 ; Bowman et al. V. Bailey, 10 Vt. R. 170; Boardman v. Kee- ler et al., 2 Id. 65; Wilkinson v. Jett, 7 Leigh's R. 115; Norment v. Hall, 1 Hump. R. 324; Kellogg v. Griswold, 12 Vt. R. 291; Ambler v. Bradley, 6 Vt. R. 119; Shropshire V. Shepherd, 3 Ala. R. 733 ; Newman et al. V. Bean, 1 Fost. R. 93 ; Rice v. Austin, 17 Mass. R. 205; Vanderburgh v. Hall et al., 20 Wend. R. 70; Emanuel v. Draugher et al., 14 Ala. R. 306 ; Hodges v. Dawes & Co., 6 Id. 217; Loomis v. Marshall, 12 Conn. R. 77 ; Ross v. Drinker, 2 Hall's R. 415 ; Thomp- son V. Snow et al., 4 Greenlf. R. 264 ; Turner V. Bissell et al., 14 Pick. R. 194; Moore v. Smith, 19 Ala. R. 774; Reed v. Murphy et. OF JOINT OWNERSHIP AND JOINT LIABILITY. 405 When the relation of partners has been established between two or more persons, either ostensibly or by participation in al., 2 Greene's R. 574; Champion et al. v. Bostwick, 18 Wend. R. 580, S. C. 11 Id. 571 ; Bull V. Schuberth, 2 Md. R. 38 ; Hallett v. Desbau, 14 La. An. R. 529 ; Smith v. Perry, 5 Dutch. R. 74 ; and it has been held, that an agreement between two house?, to share com- missions on sales of goods, forwarded by one to the other, will not constitute a partner- ship; Pomeroy v. Sigerson, 22 Mo. R. 177; and so of two carriers to share freight ; Mer- rick V. Gord.m, 20 N. T. R. 93. That there is a distinction between a shar- ing of the profits indefinitely, and the taking of a percentage of the profits, is undoubtedly the law of this country, as it is also that of England, but it is a matter of great difiBculty to determine where the profits as wages end, and the profits as profits begin ; thus, Wilde J., in Blanehard v. Coolidge, 22 Pick. R. 154, says: "But there is a distinction be- tween an agreement to share the profits of a trade indefinitely, as profits, and an agree- ment with an agent to allow him a certain share of the profits, as a compensation for his services." So, too, this delicate difierence is commented upon by Chief Justice Gibson, in Miller r. Bartletetal., 15 Serg. &Raw. R.137, in the following words : " How a commission on profits, can be distinguished from an in- terest in the profits, as such, I am at a loss to comprehend. The profits cannot be ascer- tained before the partnership account is set- tled, and then a party, under claim to commis- sions, is entitled to what? To a compensation equal in amount to so many hundredths of the sum of the profits. He is said not to have a specific interest in the profits as such. He has, indeed, no lien or specific demand on the particular fund as a corptis ; but neither has a partner who is admitted to be so ; profits being an incorporeal essence, and without specific existence before they are re- ceived and enjoyed. It is imjjossible to dis- cover any difference, but what is found in the terms, between a dividend and a commis- sion ; yet this difference, flimsy as it is, seems to be firmly established." And again, in Dunham v. Rogers, 1 Pa. St. R. 262, the .same Judge remarks : "It has been so often and so invariably ruled, in England and America, that a commission on profits, is not such an interest in the concern as constitutes partner- ship, that the point is at rest. What staggers the mind, in this instance, is the apparent shallowness of the distinction, when it is con- sidered, that a commission of fifty per cent, is no more nor less than an equal division of the profits ; but it must not be forgotten that the distinction is an arbitrary one, resting on authority, not principle, and that whatever be the proportion, the relation produced by a compensation, in the form of a commission, is in every instance the same." And see the case of Pierson v. Steinmyer et al., 4 Rich- ard. R. 309, where Judge Wardlow says : " An agent might stipulate, that he might re- ceive for his services, a sum equal to a cer- tain share of the profits of a house, owned by neighbors of his employer As profits usually arise in dollars, there is, of course, frequent confusion between a share of the profits as profits, and a sum measured by a share of the profits ; and the distinction be- comes shadow3% difl5cult of application, and liable to be perverted to purposes of fraud and unfair dealing." An agreement that each party shall pay his own losses, will not constitute a partner- ship, for they must mutually share each oth- er's losses; but, under such a state of circum- stances, they may be liable to third persons, as partners; Heckert v. Fegely, 6 Wat. & Serg. R. 139. Where, upon agreement, one was to furnish a circular saw-mill, and hands, and stock to saw, and another was to furnish logs, and feed, for the hands and stock, and the lumber was to be divided equallj' between them, it was held that they were not part- ners ; Stoallings v. Baker et al., 16 Mo. R. 481; but, "where two persons agreed to burn lime on .shares, one to fill the kiln with stones, and the other to burn the kiln, and furnish the necessary wood for the purpose, the lime to be equally divided between them, it was held, that a technical partnership ex- isted between the parties." See, also, Jones V. McMichael, 12 Rich. L. R. 176. What constitutes a partnership, is a ques- 406 OF PERSONAL ESTATE GENERALLY. profits, each incurs liability from the acts and dealings of the other in the ordinary course of business. For any one partner tion of law ; whether one exists, is a question of fact ; Gilpin v. Temple et al., 4 Harring. R. 192. But a partnership may exist as to third persons, where it does not exist between the parties themselves; thus, in Hazzard v. Hazzard, 1 Story's R. 273, Judge Story uses the following language : "It is necessary to take notice of a well-known distinction be- tween cases, where, as to third persons, there is held to be a partnership, and cases, where there is a partnership between the parties themselves. The former may arise between the parties, by mere operation of law, against the intention of the parties ; whereas, the latter exists only when such is the actual in- tention of the parties. Thus, if A. and B. should agree to carry on any business for their joint profit, and to divide the profits equally between them, but B. should bear all the losses, and should agree that there should be no partnership between them ; as to third persons dealing with the firm, they would be held partners, though inter se, they would be held not to be partners." In speaking of the same subject, Chief Justice Rufiin, in Holt & Co. V. Kernodle, 1 Ired. R. 202, remarks: "As to third persons, who may deal with the firm, a partnership may arise, upon a prin- ciple of public policy, so as to bind a person for all the liabilities of a firm, and, indeed, make him a party to all its contracts, although that person bring into the business neither effects nor services, but merely lend his name as a partner, or otherwise hold himself out to the world as such The ordinary test, however, of a person being a partner, is his participating in the profits of the business; and we believe, there can be no instance im- agined, where there is to be a participation in them, as profits, in which every person having a right to share in them, is not thereby rendered a partner, to all intents and pur- poses. It is so between the parties them- selves ; because the one of them does not look to the other, personally, for restoring to him his capital, or remunerating him for his la- bor ; but each looks to the assets, or joint fund, for those purposes, and ascertains his interest by taking an account of the concern. Much more does sharing in the profits consti- tute a partnership as to the rest of the world, because, . . . the party takes from the cred- itors a portion of that fund, which is the proper security for the payment of their debts." Again, in the ease of Gill et al. v. Kuhn, 6 Serg. & Raw. R. 337, which was a suit between partners, it was said by Chief Justice Gibson : " That there is a distinction between partnership as it respects the public, and partnership as it respects the parties, is an elementary principle of this branch of the law, so plain, that its only difficulty is its application to particular cases. Where the agreement is silent, there is often room to doubt as to the precise relation in which the parties stand to each other ; and then a joint interest in the stock is considered a discrimi- native circumstance ; but where they expli- citly declare there is to be no partnership, it is unnecessary to inquire further ; for among themselves, the law permits them to deter- mine their respective interests by their own stipulations ; it is a matter with which third persons have no concern Hence, the invoices, bills of sale, circular letter, and receipt-book, given in evidence to prove that a joint business had been carried on, which would have a decisive influence on a question of liability to third persons, must be laid out of the case here." And see. Kerr v. Potter, 6 Gill's R. 404; Sylvester et al. v. Smith, 9 Mass. R. 119 ; Coterill v. Vandusen et al., 22 Vt. R. 511 ; Stearns v. Haven et al., 12 Id. 540 ; Markham's Exr. v. Jones, 7 B. Mon. R. 486; Buckingham v. Burgess et al., 3 McL. R. 364 ; Blanchard v Coolidge, 22 Pick. R. 154 ; Heckert v. Fegely, 6 Wat. & Serg. R. 139; Kellogg V. Griswold, 12 Vt. R. 291; Osborne v. Brennan, 2 N. & McCord's R. 427; Motley V. Jones et al., 3 Ired. C. R. 144 ; Bull V. Schuberth, 2 Md. R. 38 ; Pierson v. Stein- myer et al., 4 Richard. R. 309; Cutter v. The Estate of Thomas, 25 Vt. R. 78 ; Mathews v. Felch et al.. Id. 538 ; Drennen et al. v. House & Co., 41 Pa. St. R. 30 ; Grady v. Robinson, 28 Ala. R. 289; Shackleford v. Smith, 25 Mo. R. 348 ; Robinson v. Green, 6 Har- ring. R. 115 ; Scranton v. Rentfrow, 29 Geo. OF JOINT OWNERSHIP AND JOINT LIABILITY. 407 may buy, sell(^) or pledge goods ;(2-) draw,(a) accept(6) or in- dorse((?) bills of exchange and promissory notes; give guaran- tees,{d) receive moneys(6) and release or compound for debts(/) in the name(^) and on the account of tlie firm, in the ordinary course of business.' Each partner is also answerable for the (y) Hyat V. Hare, Comb. 383; Lambert's Case, Godbolt, 244. {z) Reid V. Hollinshead, 4 B. & Cress. 867, E. C. L. R. vol. 10. (a) Smith v. Jarvis, 2 Lord Raymond, 1484 ; Re Clarke, Ex parte Buckley, 14 Mee. «fc Wels. 469 ; 1 Phil. 562. (b) Pinkney v. Hall, 1 Salk. 126 ; 1 Lord Raym. 175 ; Lloyd v. Ashby, 2 B. & Adol. 23, E. C. L. R. vol. 22. (c) Swan V. Steele, 7 East, 210 ; Vere v. Ashby, 10 Barn. & Cress. 288, E. C. L. R. vol. 21. id) Ex parte Gardotn, 15 Ves. 286; see Halesham v. Young, 5 Q. B. 833, E. C. L. R. vol. 48. (e) Duff V. East India Company. 15 Ves. 198, 213. (/) Per Lord Kenyon, 4 T. Rep. 519 ; per Best, C. J., 10 Moore, 393. (g) Kirk V. Blurton, 9 Mee. & Wels. 284. R. 341. Limited partnerships, however, may be formed, in almost all the States, in the manner directed by statute ; and the special partner, in such a partnership, will not be liable to the creditors of the firm, to a greater extent than the amount contributed by him to the company. A limited partnership may be defined, as a contract by which one person or partnership, agrees to furnish another per- son or partnership, a certain amount, either in property or money, to be employed by the person or partnership, to whom it is furnished, in his or their own name or firm, on condition of receiving a share in the profits, in the pro- portion determined by the contract, and of being liable to losses and expenses to the amount furnished, and no more. On the subject of limited partnership, see the statutes of the respective States ; author- ity for the formation of this species of part- nership being thereby given in almost every State. ' One partner may bind the firm by a parol contract, in business relating to the partner- ship; Weaver v. Tapscott, 9 Leigh's R. 432 ; Sale V. Dishman's Exrs., 3 Id. 548; McCul- lough V. Sommerville, 8 Id. 415 ; Doak v. Swann et al., 8 Maine R. 170 ; The Man. and Mech. Bank v. Gore et al., 15 Mass. R. 81 ; Boardman v. Gore et al.. Id. 339 ; Galloway V. Hughes et al., 1 Bail. R. 561 ; Nichols v. Hughes et al., 2 Id. 109 ; Livingston t;. Roose- velt, 4 Johns. R. 265 ; Winship v. The Bank of the United States, 5 Pet. R. 529 ; Miller V. Consolidation Bank, 48 Pa. St. R. 514 ; Ihmsen v. Negley et al., 25 Id. 297 ; Fant v. West, 10 Rich. L. R. 149 ; Kennebec Co. v. Augusta Ins. and Banking Co., 6 Gray's R. 204 ; Storer v. Hinkley et al., Exrs., Kirby's R. 147; but "the purposes for which the partnership was created, and the extent of the authority of the individual members, is not to be limited by the articles under which their connection was formed, but is to be as- certained, rather from the character of their dealings, and manner in which they hold themselves out to the world ;"' hence, in the case of Catlin et al. v. Gilder's Exrs., 3 Ala. R. 544, it having been testified that the firm of Catlin, Peeples & Co. dealt in dry goods and groceries, and were in the habit of trad- ing in anything on which they could make money, it was held, that " taking this state- ment as literally true, and it cannot be ques- tioned, that Catlin might, during the con- tinuance of the partnership, have purchased hogs, or other stock, on account of the firm." But in doubtful cases, it is for a jury to de- cide, whether the partner was conducting the usual business of the firm, in the usuiil miin- ner, so as to bind the firm ; The London 408 or PERSONAL ESTxVTE GENERALLY. fraud of liis copartner in any matter relating to the business of Savings Fund Society v. Hagerstown Savings Bank, 36 Pa. St. R. 498. A partnership is bound by the fraud' of one of its members, in all matters relating to the business of the firm ; Beach v. The State Bank, 2 Cart. (Ind.) R. 488: Boardman v. Gore et al., 15 Mass. R. 3.31 ; Reynolds v. Waher's Heir and Admr., 1 ^Yash. (Va.) R. >64 ; Venable v. Levick, 2 Head's R. 351 ; Nesbit et al. v. Patton et al., 4 Raw. R. 120 ; for, "by form- ing the connection, the partners publish to the world their confidence in each other's in- tegrity and good faith, and impliedly agree to be responsible for what they shall respec- tively do, within the scope of their partner- ship business." Hawkins et al. -v. Appelby et al., 2 Sandf. S. R. 428. But if money is borrowed, or goods bought, or any other con- tract is made by one partner, upon his own exclusive credit, he alone is liable therefor, al- though the money, property, or other contract is for the proper use and benefit of the part- nership, and is applied thereto ; No. Pa. Coal. Cos. Ap., 45 Pa. St. R. 185 ; Clay v. Cottrell, 18 Id. 408. But see to the contrary, Tucker v. Peaslee, 36 N. H R. 167. But one partner cannot bind the firm by deed, or instrument under seal ; Donaldson V. Kendall et al., 2 Geo. Decs. 227 ; Clement V. Brush, 3 Johns. Cas. 181 ; Green et al. v. W. & T. Beals, 2 Caines's R. 254 ; Napier v. Catron et al., 2 Hump. R. 534 ; Anderson et al. V. Tompkins et al., 1 Brockenb. R. 463 ; Andrew's Heirs, Ac, v. Brown's Admr. et al., 21 Ala. R. 437 ; Davidson et al. v. Kelly, 1 Md. R. 501 ; Snyder v. May et al., 19 Pa. St. R. 235; Pierce v. Cameron et al., 7 Richard. R. 114 : Chamberlain et al. v. Mad- den, Id. 395 ; except by way of release ; Crutwell V. De Rossett, 5 Jones's L. R. 263 ; Fluck V. Bond, 3 Phila. R. 207 : Ormsbee v. Davis, 5 R. I. R. 442 ; and hence, one partner cannot dispose of the partnership real estate ; Piatt V. Oliver et al., 3 McL. R. 27; Ely v. Hair, 16 B. Mon. R. 230 ; though his deed will convey to the grantee the legal title to an undivided moiety, subject to the equities of the partnership ; Jones v. Neagle, 2 P. & H. R. (Va.), 339 ; but where a partner has a right to dispose of the assets of the firm as surviving partner, though his deed to a pur- chaser of real estate will not convey a legal title, yet it will transfer an equitable title, through which he may compel the heir to convey the estate ; Andrew's Heirs, &e., v. Brown's Admr. et al., 21 Ala. R. 437 ; Roth- well V. Dewees, 2 Black's U. S. R. 616 ; Du- bois Ap., 38 Pa. St. R. 231 ; and it has been held, that in cases of urgency, all the partners need not join in an assignment of the partner- ship property ; Robinson v. Gregory. 29 Barb. R. 560 ; Kemp v. Carnley, 3 Duer's R. 1. So, one partner canuot by a confession of judgment bind his copartner ; Shedd v. Bank of Brattleboro, 32 Vt. R. 709 ; Edwards v. Pitzer, 12 Iowa R. 607; unless actually brought into court by service of process on himself and copartner ; Crane et al. v. French et al., 1 Wend. R. 311 ; Morgan et al. V. Richardson, 16 Mo. R. 409 ; and a ser- vice of process on one of several partners, is not equivalent to service on all ; Rice v. Doniphan et al., 4 B. Mon. R. 123. But a judgment for a partnership debt recovered against one of the partners, the others being out of the jurisdiction, is payable out of part- nership property, in preference to the indivi- dual debts of the partner sued ; Inbusch v. Farwell, 1 Black's U. S. R. 566 ; and a judg- ment confessed by one partner, is good as be. tween him and the creditor, though void as to the copartners; York Bank's Ap. , 36 Pa. St. R. 458 ; Grier v. Hood, 25 Id. 430. After the dissolution of a firm, the admis- sions of one of the partners cannot be received in evidence against his copartners ; Hamil- ton V. Summers, 12 B. Mon. R. 14 ; Daniel V. Nelson, 10 Id. 316 ; Draper v. Bi.=sel et al., 3 McL. R. 275 ; Bispham v. Patterson et al., 2 Id. 87 ; Robinson et al. v. Taylor et al., 4 Pa. St. R. 242; Berryhill v. McKee,. 1 Hump. R. 31 ; Kauffman v. Fi.=her, 3 Grant's Cas. 302 ; unless the one making such admis- sions, has an express, or an implied authority, to settle the business of the firm ; Draper V. Bissel et al., 3 McL. R. 275 ; Robinson et al. V. Taylor et al., 4 Pa. St. R. 242; Reppert v. Colvin, 48 Pa. St. R. 248. OF JOINT OWNERSHIP AND JOINT LIABILITY. 409 the partnership. (A) ' And in *like manner notice of any r:^Qq-t-\ matter relating to the partnership, if given to one partner, L ^ J is' constrnctively notice to them all.(2) And any agreement between the partners, by which any one of them may be re- strained from doing any act to pledge the credit of the firm, though binding as between themselves, will not be binding on any creditor( J) who may not have notice of it.{Ji) If, however, the transaction be not in the ordinary course of the business of the partnership, the other partners will not be liable as such in respect of it. Thus one partner cannot bind the firm by a sub- mission to arbitration, (f) or by confessing a judgment;(wi) and one partner has ordinarily no authority to execute a deed in the names of the others so as to bind the partnership. (n) So a farmer carrying on his business in partnership with another would not be liable on a bill of exchange drawn by his partner in the name of the partnership ;(o) neither wopld a solicitor be liable on a bill drawn by his partner in the name of his firm, though given to secure a partnership deht;{p) for bill transac- tions form no part of the ordinary business of either farmers or solicitors. Again there is no right or power implied by law in any of the directors of a joint-stock company to bind the com- pany by drawing or accepting bills or notes ;(^) and in like man- ner notice of any matter relating to the business of a joint-stock company given to any member, even a director, is not r-^^^^.^^-, *constructive notice to the company itself. (r) For joint- stock companies are essentially different from ordinary partner- ships. It is not necessary that the directors should have any other power to bind the company by bills or notes than such as (/i) Willet V. Chambers, Cowp. 814; Stone v. Marsh, 6 Barn. & Cress. 551, E. C. L. R. vol. 13 ; Lavell v. Hicks, 2 You. & Coll,' 481 ; Blair v. Bromley, 5 Hare, 542 ; 2 Phil. 354. (i) Per Lord Ellenborough, 1 Mau. & Selw. 259. (_;■) Waugh v. Carver, 2 H. Black. 235 ; South Carolina Bank v. Case, 8 Barn. & Cress. 427, E. C. L. R. vol. 15 ; Hawken v. Bourne, 8 Mee. & Wels. 703, 710. (/■) Minnit v. Whinery, 5 Bro Pari. Gas. 489. (/) Stead V. Salt, 3 Bing. 101, E. C. L. R. vol. 11 ; S. C. 10 J. B. Moore, 389. (in) Harabidge v. De la Crouee, 3 C. B. 742, E. C. L. R. vol. 54. (w) Harrison v. Ja kson, 7 T. Rep. 207. See Burn v. Burn, 3 Ves. 573, 578. (o) Per Littledale, J., 10 Barn. & Cress. 138, E. C. L. R.. vol. 21. (/;) Hedley v. Bainbridge, 3 Q. B. 310, E. C L. R. vol. 43. («/) Dickinson v. Valpy, 10 Barn. &, Cress. 128, E. C. L. R. vol. 21 ; Bramah v. Roberts, 3 N. C. 903, E. C. L. R. vol. 32. (r) Powles V. Page, 3 C. B. 10, E. C. L. R. vol. 54 ; Martin v. Sedgwick, 9 Beav. 333. 410 OF PERSONAL ESTATE GENERALLY. may be conferred on them by the charter or articles of associa- tion ;(5) and the business of such companies is always carried on at an office for the purpose, and is not, like that of ordinary partnerships, confided to any one individual member. The Com- panies Act, 18G2, now provides, that a promissory note or bill of exchange shall be deemed to have been made, accepted, or indorsed on behalf of any company under that act, if made, accepted, or indorsed in the name of the company by any person acting under the authority of tlie company, or if made, accepted, or indorsed by or on behalf or on account of the company by any person acting under the authority of the company. (if) The liability of a shareholder in a joint-stock company to the debts of the company has been already noticed. It varies, as we have seen,(u) according as the company is incorporated with un- limited liability or wnth liability limited by shares or by guaran- tee. The mere circumstance, however, of a person allowing his name to be published as a provisional committee-man of a pro- jected joint-stock company does not confer on the solicitor or secretary of the intended company, or any one else, implied authority to pledge the credit of such person for goods supplied to the company, or work done on its account.(v) For to agree to r*9Qq-] become a *member of a committee is merely to agree to become one of a body, to whom others have committed a particular duty, and does not constitute an agreement to share with the other members of that body in profit or loss, w^hich is the characteristic of a partnership.(2/?) JS'or does the mere ac- ceptance of shares and payment of a deposit on them, without any further act, render a provisional committee-man liable to the creditors of the projected company. (a:) Assignees in bankruptcy, with the leave of the court first ob- tained, upon application to such court, but not otherwise, may (s) Balfour v. Ernest, 5 C. B. N. S. 601, E. C. L. R. vol. 94. (0 Stat. 25 & 26 Vict. c. 89, s. 47. (w) Ante, p. 208. («) Reynell v. Lewis, 15 M. & W. 517; Barker v. Stead, 3 C. B. 946, E. C. L. R. vol. 64; Baiiey v. Macaulay, 13 Q. B. 815, E. C. L. R. vol. 66. (w) 15 Mee. & Wels. 529. (x) Bright V. Hutton, 3 H. of L. Gas. 341, overruling Upfill's Case, 2 H. of L. Gas. 674. See Spottiswoode's Case, 6 De Gex, M. & G. 345. OF A WILL. 411 commence, prosecute, or defend any action at law or suit in equity which the bankrupt might have commenced or prosecuted or defended ; and with the like leave of the court, after notice to such creditors, and subject to such condition (if any) as to ob- taining the consent of creditors, or any proportion of them, as the court shall think fit to direct, the assignees may compound, or give time, or take security, for the payment of any debts due to the bankrupt's estate, and may submit to arbitration any dispute relating to the bankrupt's estate.(?/) And any agreement of reference to arbitration made by the assignees may be made a rule of any of her majesty's superior courts of law at Westmin- ster, whether such agreement contain a clause to that eflfect or not.(^) ♦CHAPTER III. [*294] OF A WILL. All kinds of personal property may be bequeathed by will. This right, in its present extent, has been of very gradual and almost imperceptible growth ; for anciently, by the general com- mon law, a man who left a wife and children could not deprivfe them by his will of more than one equal third part of his personal property. If, however, he left a wife and no children, or children and no wife, he was then enabled to dispose of half, leaving the other half for the wife or for the children, (r?) This ancient rule, however, gradually became subject to many exceptions, by the cus- toms of particular places, until the rule itself took the place of an exception and became confined to such places as had a custom in its favor. These places, in later times, were the province of York, the principality of Wales, and the city of London ; as to all which places, a general power of testamentary disposition was (y) Stat. 12 & 13 Vict. c. 106, 8. 15.3. (r) Sect. 154. (a) 2 Black. Com. 492; Williams on Executors, pt. 1, bk. 1, ch. 1. See, also, 1 C. P. Cooper's Reports, p. 539. 412 OF TERSONAL ESTATE GENERALLY. conferred by acts of Parliament of AVilliam ancT Mary, Anne and George l;{b) and now, by the recent act for the amendment of the laws with respect to wills, (c) every person of full age is ex- pressly empowered to bequeath by his will, to be executed as re- quired by the act, all personal estate to which he shall *De •- -' entitled, either at law or in equity, at the time of his decease.^ The ecclesiastical courts, as we shall hereafter see, very early acquired the right of determining as to the validity of wills of personal estate ; and, in the exercise of this right, they generally followed the rules of the civil law. By this law males at the age of fourteen, and females at the age of twelve, were allowed, if of sufficient discretion, to make a testament ;((/) and the same rule, accordingly, prevailed in this country with respect to wills of per- sonal property,(e) although, by some authorities, seventeen and even eighteen was said to be the proper age.(/) The act for the amendment of the laws with respect to wills, has, however, now made the law uniform with respect to all wills, whether of real or of personal estate, and has enacted that no will made by any person under the age of twenty-one years shall be valid, (9)^ (b) Stat. 4 & 5 Will. & Mary, c. 2, explained by stat. 2 & 3 Anne, c. 5, for the province of York ; Stat. 7 & 8 Will. Ill, c. 38, for Wales ; and stat. 11 Geo. I, c. 18, for London. See 2 Bl. Cora. 493. (f) Stat. 7 Will. IV & 1 Vict. c. 26, s. 3. (d) Inst. lib. 2, tit. 12, s. 1 ; Dig. lib. 28, tit. 1, s. 5. (e) 2 Bl. Com. 497. (/) Co. Litt. 89 b, n (fi). {g) Stat. 7 Will IV & 1 Vict. c. 26, s. 7. 1 By the eleventh section of an act of swered by a reference to the statutory pro- the Legislature of Pennsylvania, of the 11th visions of each particular State. of April, 1848, the widow of a decedent, In Pennsylvania, "Every person of sound who has made a will, shall not be deprived mind (married women excepted), may dis- of her share of his personalty under the in- pose by will of his or her real estate, whether testate laws of that State, in case she elects such estate be held in fee simple, or for the not to take under the will ; Purd. Dig. life or lives of any other person or persons, (1861), p. 1017, sec. 13; and . by a recent and whether in severalty, joint tenancy or statute, the power of the wife to make a will, common, and also of his -or her personal es- has been restricted as to her depriving her tate. Any married woman may dispose, by husband of his rights, in like manner ; Id. her last will and testament, of her .separate 1018, see. 21. See, also, 2 Revis. Statutes property, real, personal, or mixed, whether of 0. (1861), p. 1623, sees. 4.3, 44, 45, and 46. the same shall accrue to her before or during 2 The questions, who may make a will ? coverture : provided, that the said last will and, how is it to be made? are best an- and testament be executed in the presence OF A WILL. 413 Personal property was anciently of so little account that a will of it might be made by word of mouth, if proved by a sufficient of two or more witnesses, neither of whom shall be her husband. And provided, also, that no will shall be effectual unless the testator were, at the time of making the same, of the age of twenty-one years or up- wards, at which age the testator may dis- pose of real as well as personal or mixed property, if in other respects competent to make a will. Every will shall be in writing, and, unless the person making the same shall be prevented by the extremity of his last sickness, shall be signed by him at the end thereof, or by some person in his presence, and by his express direction, and in all cases shall be proved by the oaths or affirmations of two or more competent witnesses, otherwise such will shall be of no effect. Provided, that personal estate may be bequeathed by a noncupative will, under the following restric- tions : 1. Such will shall in all cases be made during the last sickness of the testator, and in the house of his habitation or dwell- ing, or where he has resided, for the space of ten days or more next before the making of such will ; except where such person shall be surprised by sickness, being from his own house, and shall die before returning thereto. 2. Where the sum or value bequeathed shall exceed one hundred dollars, it shall be proved that the testator, at the time of pronouncing the bequest, did bid the persons present, or some of them, to bear witness that such was his will, or to that effect ; and in all cases the foregoing requisites shall be proved by two or more witnesses, who were present at the making of such will. Provided, that not- withstanding this act, any mariner being at sea, or any soldier being in actual military service, may dispose of his movables, wages, and personal estate, as he might have done before the making of this act. No will in writing concerning any real estate shall be repealed, nor shall any devise or direction therein be altered, otherwise than by some other will or codicil in writing, or other writing declaring the same, executed and proved in the same manner as is hereinbefore provided, or by burning, cancelling, or oblit- erating or destroying the same by the testa- tor himself, or by some one in his presence, and by his express direction. When any per- son shall make his last will and testament, and afterwards shall marry, or have a child or children not provided for in such will, and die leaving a widow and child, or either a widow, or child, or children, although such child or children be born after the deatlf of their father, every such person, so far as shall regard the widow, or child or children after born, shall be deemed and construed to die intestate, and such widow, child or children, shall be entitled to such purparts, shares, and dividends of the estate, real and personal, of the deceased, as if he had actually died with- out any will. A will executed by a single woman shall be deemed revoked by her sub- sequent marriage, and shall not be revived by the death of her husband ;" Purd. Dig. (1861), pp. 1016, 1017, 1018. In New York, "All persons, except idiots, persons of unsound mind, married women, and infants, may devise their real estate, by a last will and testament, duly executed, according to the provisions of this title. Every male person of the age of eighteen years or upwards, and every female not being a married woman, of the age of six- teen years or upwards, of sound mind and memory, and no others, may give and be- queath his or" her personal estate, by will in writing. No nuncupative or unwritten will, bequeathing personal estate, shall be valid, unless made by a soldier, while in actual military service, or by a marine, while at sea. Every last will and testament of real or personal property, or both, shall be exe- cuted and attested in the following manner : 1. It shall be subscribed by the testator at the end of the will. 2. Such subscription shall be made by the testator, in the presence of each of the attesting witnesses, or shall be acknowlrilged by him to have been so made, to each of the attesting witnesses. 3. The testator, at the time of making such sub- scription, or at the time of acknowledging the same, shall declare the instrument so subscribed, to be his last will and testament. 4. There shall be at least two attesting wit- 414 OF PERSONAL ESTATE GENERALLY. number of witnesses, as well as by writing; and a will made by word of moutli was termed a nuncupative testament.{A) By the (h) Wentworth's Executors, 11 ft seq. ; Williams on Executors, pt. 1, bk. 2, ch. 2, s. 6. Besses, each of whom shall sign his name as a witness at the end of the will, at the request of the testator. The witnesses to any will, shall write opposite to their names their re- spective places of residence ; and every per- soit who shall sign the testator's name to any will by his direction, shall write his own name as a witness to the will. No will in writing, except in the cases hereinafter men- tioned, nor any part thereof, shall be revoked or altered, otherwise than by some other will in writing, or some other writing of the testa- tor, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed ; or unless such will be burnt, torn, cancelled, obliterated, or destroyed, with the intent, and for the purpose of revoking the same, by the testator himself, or by another person in his presence, by his direction and consent j and when so done by another person, the direction and consent of the testator, and the fact of such injury, or destruction, shall be proved by at least two witnesses. If, after the making of any will, disposing of the whole estate of the testator, such testator shall marry, and have issue of such marriage, born, either in his lifetime, or after his death, and the wife, or the issue of such marriage, shall be living at the deaih of the testator, such will shall be deemed revoked, unless provision shall have been made for such issue, by some settlement, or unless such issue shall be provided for in the will, or in such way mentioned therein, as to show intention not to make such provision ; and no other evidence to rebut the presumption of such revocation shall be received. A will executed by an unmarried woman shall be deemed revoked by her subsequent marriage. Whenever a testator shall have a child born, after the making of his will, either in his lifetime, or after his death, and shall die, leaving such child, so after born, unprovided for by any settlement, and neither provided for, nor in any way mentioned in his will, every such child shall succeed to the same portion of the father's real and personal estate. as would have been descended or distributed to such child, if the father had died intes- tate ;" N. Y. Revis. Stats., 6th ed., vol. iii, pp. 138, 141, 144, 145. As to power of* a married woman over her separate estate, see Id. 240. See also N. H. Compiled Stats. (1853), pp. 45, 381, 401 ; Thompson's Dig. of the Ls. of Fla. 192, 193 ; Oldham and White's Dig. of the Ls. of Texas (1859), pp. 464, 455 : New Dig. of the Ls. of Geo., by T. R. R. Cobb, vol. ii, pp. 1128, &c. ; Matthews's Dig., vol. ii, pp. 859, Ac. ; Revis. Stats, of Vt. (1839), pp. 254, &c. ; 2 Compiled Ls. of Mich., pp. 862, ;) and *if he should have paid any legacies in ignorance of the claims of the creditor, his only remedy is to apply to the legatees to refund their legacies, which they will be bound to do, in order to satisfy the debt.(Z) From this liability to creditors, an executor could not until recently have been discharged, unless he threw the property into chancery, in which case the court undertakes the administration, and the executor is consequently exonerated from all risk.(/n) (g) stats. 13 & 14 Vict. c. 35, s. 19 ; 23 & 24 Vict. c. 38, s. 14. (/i) Ward V. Penoyre, 13 Ves. 333 ; Benson v. Maude, 6 Madd. 15. {i) Ward v. Penoyre, iibi supra. {l) Norman v. Baldry, 6 Sim. 621; Knatchbull v. Fearnhead, 3 My. & Cr. 122; Hill v. Gomme, 1 Beav. 540. (I) March v. Ras,«ell, 3 My. & Cr. 31. (m) 3 Myl. & Or. 126. 1 The personal representative of a testator Ladd v. Wiggin, 35 N. H. R. 421 ; Thomas or intestate, is bound to proceed in the set- v. Reister, 3 Ind. R. 369; Walker v. Craig, tlement of the estate, in such manner as will 18 111. R. 116. As to the obligation of an promote the interests of those entitled thereto, executor, or administrator, to plead the and to that end may compromise claims ; statute of limitations, there seems to be a Chouteau v. Suydam, 21 N. Y. R. 179; or diversity of sentiment; and although the ■waive formal proof thereof ; Ander.'on'sAdmr. better opinion is that he has a discretion on V. Washabaugh, 43 Pa. St. R. 115 ; or anrbi- the subject ; Barnawell v. Smith, 5 Jones Eq. trate them ; Peter's Ap., 38 Pa. St. R. 239; R. 168; Semmes v. Magruder, 10 Md. R. so, also, he may rescind an unfinished con- 242 ; Pollard v. Sears, 28 Ala. R. 484 ; Rit- tract of his testator or intestate : Dougherty ter's Ap., 23 Pa. St. R. 95 ; yet, there is not V. Stephenson, 20 Pa. St. R. 210 ; Gray v. wanting authority, that the personal repre- Hawkins, 8 0. R. (N. S.) 449 ; or assign and sentative of a decedent is without discre- transfer the securities belonging to the estate ; tion, and must plead the statute; Rector f. Speelman v. Culbertson, 15 Ind. R. 441; Conway, 20 Ark. R. 79. OF A WILL. 441 But a recent act exonerates executors from all liability to the rents and covenants of any leasehold or other property liable to rents or covenants after an assignment made by him to a pur- chaser, provided he shall have set apart a sufficient fund to answer any future claim in respect of any tixed and ascertained sum agreed by the lessee or grantee to be laid out on the prop- erty. (?/)' And it is further provided, that where an executor shall have given the like notices as would have been given by the Court of Chancery in an administration suit, for creditors and others to send in their claims against the estate of the testa- tor, the executor may distribute the assets amongst the parties entitled, without liability to any person of whose claim he shall not have had notice at the time of distribution. (o) The executor is of course not answerable to the testator's creditors beyond the amount of assets which have come to his hands,(_^^) unless he should for sufficient consideration give a written promise to pay personally,(^) or should do any act amounting *to an ad- pgi^-i mission that he has assets of the testator sufficient for the payment of the debts. (r)^ (71) Stat. 22 & 23 Viet. c. 35, ss. 27, 28. This act extends to leases made before it passed ; Smith V. Smith, 1 Drew. & Smale, 684 ; Re Green, 2 De Gex, F. & J. 121. (o) Stat. 22 & 23 Vict. c. 35, s. 29. (p) Bac. Abr. tit. Executors (P), 1. {q) Stat. 29 Car. II, c. 3, s. 4 ; ante, p. 74 ; 1 Wms. Saiind. 210, n. (1) ; 211, n. (2). (>•) Horsley v. Chaloner, 2 Ves. Sen. 83. 1 Though the covenant in a ground rent Tandj' et al., 3 Bibb's R. 97 ; Byrd v. Hollo- deed, is personal on the part of the covenantor, waj-, 6 Smed. & Mar. R. 199 ; Loundes, ic. yet as to arrears of rent accruing after his v. Pinckney et al., 2 Strobh. E. R. 44 ; Rob- decease, the landlord is restricted to the inson v. Lane, 14 Smed. & Mar. R. 161 ; realty out of which it issues, and is not en- Clayton v. Wardell, 2 Bradf. R. 1 ; but, titled to payment out of money in the where he has been in possession of assets, and hands of the executors. But the personal has handed them over to his co executor or representatives of the covenantor, may be administrator, or other person, or has in sued for the breaches of the covenant in the any way connived at the possession of the ground-rent deed, occurring after his death, assets by his co-executor or administrator, though the judgment will be restricted to the he will be responsible for their adminis- land bound by the covenant ; Williams's Ap., tration ; Douglass v. Satterlee et al., Admrs., 47 Pa. St. R. 283. 11 Johns. R. 16 ; Stewart v. Conner. 9 Ala. 2 An executor or administrator can only R. 803 ; Edmonds el al. v. Crenshaw, 14 Pet. be made answerable for the assets which come R. 166; Mesick, Exr., i>. Mesick et al., 7 to his hands; Douglass v. Satterlee et al., Barb. S. R. 120; Clarke v. Jenkins et al., 3 Admrs., 11 Johns. R. 16 ; "Williams v. Hoi- Rich. E. R. 319 ; Tilton v. Tilton, 41 N. H. den, 4 Wend. R. 229 ; Call et al., Exrs., v. R., 479 ; and so where he postpones the col- Ewing, 1 Biackf. R. 301 ; Moore's Admrs. v. lection of a debt due the estate, until it is 442 OF PERSONAL ESTATE GENERALLY. On the payment or delivery of any legacy of the amount or value of 20^. or upwards, whether payable out of the estate of the testator, real or personal, or out of any real or personal estate over which he had a power of appointment, (5) a receipt must be given by the legatee, which is chargeable with a duty, called the legacy duty, on the amount or value of the legacy.(;') But no sura of money, which by any marriage settlement is subjected to any limited power of appointment to or for the benetit of any person or persons therein specially named or described as the ob- ject or objects of such power, or to or for the benefit of the issue of any such person or persons, is liable to legacy duty under the will in which such sum is appointed or apportioned in exercise {s) Stat. 8 A 9 Vict. c. 76, s. 4 ; Attorney-General v. Marquis of Hertford, 3 Ex. Rep. 670. (t) Stat. 36 Geo. Ill, c. 52, s. 27. lost; Shafifer's Ap., 10 Pa. St. R. 131 ; Cason V. Cason, 31 Missi. R. 578. A promise, however, made by an executor or administrator, in writing, to pay the debt of his testator or intestate, will make him in- dividually liable ; Ciples v. Alexander, 2 Con- stitutional R. 768 ; Robinson v. Lane, 14 Smed. & Mar. R. 161 ; Carter v. Thomas, 3 Cart. R. 213 ; provided, it be made upon a suflBcient consideration ; Byrd v. Holloway, 6 Smed. & Mar. R. 199 ; Mosely et al. v. Taylor, 4 Dana's R. 542 ; Robinson v. Lane, 14 Smed. & Mar. R. 161 ; and, forbearance is a sufficient consideration ; Taliaferro v. Robb et al., Admrs., 2 Call's R. 217 ; Mosely et al. V. Taylor, 4 Dana's R. 542 ; but a verbal promise, even if upon a good consideration, will not be binding, in those States, where the statute of frauds requires the promise of an executor to pay the debt of his testator, to be in writing, as falling within the provisions of that statute ; Harrington v. Rich, 6 Vt. R. 666. But where an executor admits that he has assets, or does any act amounting to such an admission, he will make himself individually responsible for the debts of the decedent ; Taliaferro v. Robb et al., Exrs., 2 Call's R. 217; Ten Eyck v. Vanderpoel, 8 Johns. R. 120 ; Sleighter v. Harrington, Exrx., 2 Tayl. R. 249 ; Sims v. Stilwell, 3 How. (Missi.) R. 181 ; Loundes, &c., v. Pinckney et al., 2 Strobb. E. R. 44 ; Irwin's Ap., 35 Pa. St. R. 294 ; Colwell v. Alger, 5 Gray's R. 67 ; Sam- ple V. Lipscomb, 18 Geo. R. 687 ; Ciples v. Alexander, 2 Constitutional R. 768 ; in which last case, it was said by Judge Bay: "As there is no privity of contract between the executor or administrator, and a testator or intestate's creditor, it is not presumed in law, that they can know whether a demand is just or unjust. And therefore, a bare admission alone, on the part of an executor or adminis- trator, is not sufficient to charge the estate with the debt, although they may admit they have assets for that purpose, and that will charge them in case of a deficiency, provided that there is a legal recovery against them." "A promissorj' note imports a considera- tion, and it is unnecessary to state any in pleading, or to prove any upon the trial, in the first instance. AVhen such note is given by an executor or administrator, it is prima facie evidence of assets, because they are the legal consideration, upon which the promise ought to be, and is presumed to be, founded ; it is, however, but jnima facie evidence be- tween the original parties, and the defendant may show that in fact there was a deficiency of assets, and of course no consideration to support the note." Bank of Troy v. Topping et al., 13 Wend. R. 557 ; S. C, 9 Id. 273. OF A WILL. 443 of such limited power.(w) The amount of legacy duty varies ac- cording to the degree of relationship which the legatee bore to the deceased.^ Where the legacy is to a child or lineal descend- ant, or to the father or mother or any lineal ancestor of the de- ceased, the duty is one per cent. If to a brother or sister, or any descendant of a brother or sister, the duty is three per cent. If to a brother or sister of the father or mother of the deceased, or any descendant of such brother or sister, five per cent. If to a brother or sister of a grandfather or grandmother of the deceased, or any descendant of such brother or sister, six per cent. And if the legacy be to any person in any other degree of collateral consanguinity to the deceased, or to any stranger in blood, the duty is ten per cent.(a:) But the husband or wife of the deceased are exempt *from all legacy duty, and so also are the r^q-io-i royal family. By the Succession Duty Act, 1853, lease- hold property, although personal estate, is exempted from legacy duty, and is charged in lieu thereof with a succession duty, cal- culated upon the same principles as the duty on real property.(?/) (;/,) Stat. 8 & 9 Vict. c. 76, s. 4. (x) Stat. 55 Geo. Ill, c. 184. (y) Stat. 16 & 17 Vict. c. 51, ss. 1, 19, 21. See Principles of the Law of Keal Property, 240, 4th ed. ; 249, 5th ed. ; 259, 6th ed. 1 By the 124th section of the act of Con- limitation of the tax as regards the amount gress of the 3d of March, 1865, legacies and of the estate. But no duty is to be paid, for distributive shares of the estates of decedents, any legacy or distributive share of personal which exceed in amount the sum of one thou- property, to the husband or wife of the dece- gand dollars, are made liable to a duty, or dent, nor for any succession of real estate, tax, to be paid to the United States, after the where the successor shall be the wife of the following rate, to wit : To a lineal ancestor or predecessor. descendant, or brother or sister of decedent, The statutes of Pennsylvania contain pro- one per centum ; to a descendant of a brother visions, by which collateral inheritances are or sister of the decedent, two per centum ; to subjected to a certain tax ; this tax does not a brother or sister of the father or mother of vary according to the degree of relytion.«hip, a decedent, or a descendant of such brother as in the English laws, and the Internal llev- or sister, four per centum ; to a brother or enue Act above referred to, but is fixed at sister of the grandfather or grandmother of a five per cent, upon the estate, real, personal, decedent, or a descendant of such brother or or mixed, of every decedent, coming to, or sister, five per centum ; to any other degree about to be enjoyed by, any other person of collateral relationship, or to a stranger, than the "father, mother, husband, wife, six per centum. The succession of real es- children, and lineal descendants of such tate, is, by the 1.33d section of the same act, decedent," provided, the estate of the deoe- Bubjected to the same tax, with the exception, dent exceeds in amount two hundred and that the brother or sister of decedent must fifty dollars. Purd. Dig. (1861), p. 148, Ac. pay a tax of two per centum, and there is no 444 OF PERSONAL ESTATE GENERALLY. If a legacy be given to an infant, or to a person absent beyond the seas, the only way in which the executor can obtain a proper discharge for such legacy is by paj-ment of it, after deducting the legacy duty, into the Bank of England, with the privity of the accountant-general of the Court of Chancery, to be placed to the account of the person for whose benefit the same shall be so paid. The money is then laid out by the accountant-general in the pur- chase of consols, which, with the dividends thereon, are after- wards transferred and paid to the person entitled, or otherwise applied for his benefit, on application to the Court of Chancery b}' petition or motion in a summary way.(2:) The legacy duty on annuities for lives is fixed by tables given in the Succession Duty Act, and is payable by four equal payments, to be made succes- sively on completing each of the first four 3'ears' payments of the annuity. («) A legacy' may be either specific, demonstrative, or general.^ (2) Stat. 3fi Geo. Ill, c. 52, s. 32; Ex parte Bennett, V. C. K. B., 15Jur. 213. (a) Stat. 16 & 17 Vict. c. 51, s. 31 ; 36 Geo. III. c. 52, s. 8. ? "A specific legacy, is a disposition of a stock, or in my stock. But if the testator certain thing, which may be known and dis- did not ovu the stock when he made the will, tinguished from any other thing of the same or died, but directed it to be purchased out of kind ;" hence, a bequest of "my East Had- his personal estate, for particular persons: on dam bank stock" is a specific legacy; Brain- the question whether these legacies were spe- erd V. Cowdry, 16 Conn. R. 1; or, of "all cific, or pecuniary, it was held by the court, my stock which I hold in the Union Bank of that they were pecuniary;" White et al. v. Pennsylvania;" Blackstone. r. Blackstone, 3 Beattie, Exr., 1 Dev. E. R. 87, S. C. Id. 320. Wat. R. 335 ; and so, a bequest of a horse. And see, also. Smith v. Smith, 23 Geo. R, or other individual thing, or money in a bag, 21. or drawer, is a specific legacy; Mathis v. "So, a bequest by a testator to his wife, in Mathis, 3 Harrison's R. 59. "But if a sum the following words: 'I wish her to take of money is bequeathed, to be laid out in the Stanford in her third of the property, if she purchase of lands, or to be vested in partieu- chooses,' is not a specific legacy to the wife, lar securities, it is a mere pecuniary legacy ; but only gives her the right to take the for the legatee cannot, in that case, sever legacy at a fair valuation ; and if that that from the general fund, so as to establish valuation is more than her share, she must a right to the identical sum in specie. And account for the surplus;" Young et al. v. this he must be able to do, in order to make Carson, Admr., et al., 1 Dev. & Bat. R. 360. his legacy specific. Thus, in a bequest of And, where a testator bequeaths bank stock stock, if the testator owned it at the time, it generally, without saying it is the bank stock is specific ; more especially, if it can be col- he owns, the bequest will be general, and not lected, from the will, that the testator in- specific. But when, after giving several leg- tended to confine the bequest, to the stock he acies of bank stock, in giving another legacy had on hand at the time of his death. As if of bank stock, he used this expression, "In the legacy be of my stock, or part of my ease there should be any deficiency in the OF A WILL. 445 A specific legacy is a bequest of a specific part of tlie testator's personal estate. Thus a bequest of "the service of plate, which bank stock, which I hold at my death, as compared with the amount bequeathed in my will and testament,"' it was held, that he meant the stock which he should then have, and therefore the legacies were specific ; McGuire et al. v. Evans et al., 5 Ired. E. R. 209. See, also, Hofif 's Ap., 24 Pa. St. R. 200. For other instances of specific legacies, see Cuthbert et al. v. Cuthbert et al., 3 Yeat. R. 4S6 ; Stiekney v. Davis, 16 Pick. R. 21 ; White V. Winchester, 6 Id. 56 ; Stout v. Hart et al., Exrs., 2 Halst. R. 414 ; Walton v. Wal- ton, 7 Johns. C. R. 262 ; Lillard v. Reynolds, o Ired. R. 370 ; Chase v. Lockerman, 11 Gill & Johns. R. 186 ; Hammond v. Hammond, 2 Bland's R. 314; Perry, Exr., v. Maxwell, Exr., 2 Dev. E. R. 488 ; Everitt v. Lane, 2 Ired. E. R. 550 ; Warren, Exr., v. Wigfall et al., 3 Desauss. R. 47 ; Wharley v. Wharley, 1 Bail. E. R. 397 ; Gilbreath v. Alban et al., 10 0. R. 64; Howell et al. v. Hooks's Admr., 4 Ired. E. R. 188 ; Christler's Exr., v. Meddis, Admr., 6 B. Mon. R. 37 ; Alsop's Appeal, 9 Pa. St. R. 374 ; Scholl v. Scholl, 5 Barb. S. R. 312; McGuire et al. v. Evans et al., 5 Ired. E. R. 269 ; Bailey et al., Exrs., v. Wag- ner et al., 2 Strobh. E. R. 1 ; Ludlam's Es- tate, 13 Pa. St. R. 188 ; Buchanan v. Pue, Jr., Exr., 6 Gill's R. 112; Van Wagener, Exr., V. Baldwin et al., 3 Halst. C. R. 211 ; Woods V. Sullivan, 1 Swan's R. 507 ; Hoke v. Herman, 21 Pa. St. R. 301 ; Wallace v. Wal- lace, 3 Fost. R.149; McGlaughlin's Exr. v. Mc- Glaughlin's Admr., 24 Pa. St. R. 20. " If a thing bequeathed in a will, by such a descrip- tion as to distinguish it from all other things, be disposed of, so that it does not remain at the death of the testator, or if it be so changed that it cannot be called the same thing, the bequest is gone. If .such a legacy be of a debt, payment necessarily makes an end of it. The legatee is entitled to the very thing bequeathed, if it be possible for the ex- ecutor to give it to him ; but if not, he can- not have money in place of it. This results from an inflexible rule of law, applied to the mere fact, that the thing bequeathed does not exist, and it is not founded on any presumed intention of the testator ;" Hoke v. Herman, 21 Pa. St. R. 301 ; Blackstone v. Blackstone, 3 AVat. R. 335; Gilbreath v. Alban et al., Exrs., 10 0. R. 64; Newcomb, Admr., v. St. Peter's Church et al., 2 Sanf. C. R. 637 ; Al- sop's Appeal, 9 Pa. St. R. 374; McGuire et al. V. Evans et al., 5 Ired. E. R. 269 ; Bailey et al., Exrs., v. AVagner et al., 2 Strobh. E. R. ] ; Ludlam's Estate, 13 Pa. St. R. 188 ; Beck V. McGillis, 9 Barb. S. R. 35 ; but "a legacy is not extinguished or destroyed by a variation of the testator's interest, produced by operation of law ; as where the bequest is of certain bank shares, and the charter of the bank expires, and the funds are conveyed to trustees, who divided the moneys received, among the stockholders ; if the testator re- ceives part of the dividends from the trus- tees, in his lifetime, it is an ademption 2)ro tanto. only ;" Walton v. Walton, 7 Johns. C. R. 262 ; Hoke v. Herman, 21 Pa. St. R. 301 ; and where there is a bequest of the proceeds of a certain bond and mortgage, and the tes- tator collects any portion of the mortgage debt, and appropriates it to other purposes, the legacy is so far adeemed, and the legatee will not be entitled to be reimbursed out of other property of the estate of the testator ; but where the testator takes a bond, of the purchaser of a part of the mortgaged premi- ses, for a proportionate account of the mort- gage debt, but the mortgage is not released from the land sold, such bond and its pro- ceeds, are proceeds of the original bond and mortgage, and go to the legatee ; Gardiner et al., Exrs.. v. Printup et al., 2 Barb. S. R. 83 ; so, also, where a testator made a specific bequest, of all notes of hand which were then payable to him, and was then in possession of four notes, signed by two persons, and after- wards, before his death, released one of the signers, and took new notes for the debt, from the other signer, secured by a mortgage ; it was held, that there was no ademption of the legacy ; Ford f. Ford, 3 Fost. R. 212 ; and see, also. Woods et al. v. Moore, 4 Sanf. S. R. 589 ; Van Wagener, Exr., v. Baldwin et al., 3 Halst. C. R. 211 ; Stout v. Hart et al., Exrs., 2 Ilnlst. R. 414; in the latter of which, a dis- tinction 18 taken between voluntary and com- 446 OF PERSONAL ESTATE GENERALLY. was presented to me on such an occasion," is specific, and so also is a bequest of "100^. consols, now standing in my name at the *Bank of England,"(6) or of "100/. consols, part of my '- -^ stock. "((?) A specific legacy must be paid or retained by the executor in preference to those which are general, and must not be sold for the payment of debts until the general assets of the testator are exliausted.((i) It is, however, liable to ademjAion by the act of the testator in his lifetime. Thus, in the instances given above, if the testator should part with'the plate, or sell the stock in his lifetime, the legacy will be adeemed, and the legatee {h) Koper on Legacies, c. 3 ; Gordon v. Duff, 28 Beav. 519. (c) Kirby v. Potter, 4 Ves. 750 a ; Hayes v. Hayes, 1 Keen, 97 ; Shuttleworth v. Greaves, 4 M. & Or. 35. {(l) Brown v. Allen, 1 Vern. 31 ; Hinton v. Pinke, 1 P. Wtns. 539 ; Sleech v. Thorington, 2 Ves. Sen. 560. pulsory payments, as regards the ademption cuniary in another ; specific, as given out of of a specific legacy. a particular fund, and not out of the estate Specific legacies cannot be applied to the at large ; pecuniary, as consisting only of payment of the debts of the testator, until definite sums of money, and not amounting the general funds of the estate are exhausted j to a gift of the fund itself, or any aliquot Brainerd v. Cowdrey, 16 Conn. R. 1 ; White part of it, the mention of the fund being et al. V. Beattie, Exr., 1 Dev. E. R. 320; considered rather by way of demonstration Wallace v. Wallace, 3 Post. R. 149 ; Shaw than condition — rather as showing how, or V. McBride, 3 Jones's Eq. R. 173. by what means the legacy may be paid, than "The courts are disinclined to recognize whether it shall be paid at all. . . . In this, specific legacies, because of their liability to as in other questions, springing from the sink with the destruction of the thing be- construction of wills, the intention of the queathed, or the fund charged. But as it testator is to be principally ascertained, and was obviously impossible to esteem as purely it is said to be necessary, that the intention pecuniary, many of the testamentary gifts, be either expressed in reference to the thing which judges inclined to withdraw from the bequeathed, or otherwise clearly appear from class of specific legacies, they were driven to the will, to constitute a legacy specific. If borrow from the civilians a term, thought to it be manifest there was a fixed and indepen- be descriptive of a speciesof donation, holding dent intent to give the legacy, separate and a middle place between specific and pecu- distinct from the property designated as the niary, the only kinds distinctly recognized source of payment, the legacy will be deemed when Swineburne wrote. They are called general or demonstrative, though accompa- deinonstratice, and, like general legacies, are nied by a direction to pay it out of a par- gifts of mere quantity, but differ from these ticular estate, or fund, specially named." by being referred to a particular fund for Walls v. Stewart, 16 Pa. St. R. 280. And payment. They are so far general, that if see also, Enders, Exr., i'., Enders, 2 Barb. S. the particular fund be called in or fail, the R. 362 j In re Barklay's Estate, 10 Pa. St. R. legatees will be permitted to receive their 387 ; Bullict's Appeal, 14 Id. 461 ; Wal- legacies out of the general assets ; yet so far lace v. Wallace, 3 Fost. R. 149 ; Walton v. specific, as not to be subject to abatement Walton, 7 Johns. C. R. 262 ; Giddings v. with general legacies, on deficiency of assets. Seward, 16 N. Y. R. 365; Irwin's Ap., 28 They are thus specific in one sense, and pe- Pa. St. R. 363. OF A WILL. 447 will lose all benefit.(<;) A demonstrative legacy is a gift by will of a certain sum directed to be paid out of a specific fund. Thus, "I bequeath to A. B. the sum of 501. sterling, to be paid out of the sum of 100?. consols, now standing in my name at the Bank of England," is a demonstrative legacy. Such a legacy is not liable to ademption by the act of the testator in his lifetime; for it is considered to be the testator's intention that the legatee should at all events have the legacy; but that it should, if possi- ble, be paid out of the fund he has pointed out. K, therefore, the testator in this case should sell the 100?. consols in his lifetime, the 50?. will still be payable to the legatee out of the general as- sets. (/) A demonstrative legacy is accordingly more beneficial to the legatee than a specific legacy. And it is also more beneficial than a legacy which is merely general ; for being payable out of a specific fund, it is not, while that fund exists, liable to abate- ment with the general legacies.(^) A general legacy is one pay- able only out of the general assets of the testator, and is liable to abatement in case of a *deficiency of such assets to pay r:j;q-|o-| the testator's debts and other legacies. A bequest to A. ^ of 100?. sterling is a general legacy; so is a bequest of 100?. con- sols, without referring to any particular stock to which the testa- tor may be entitled.(/i) A bequest of a mourning ring, of the value of 10?., is also a general legacy, no specific ring of the tes- tator's being referred to.(i) In the two last cases, the executor would be bound to set apart or buy the stock, or purchase the ring for the legatee out of the general assets of the testator, sup- posing them sufficient for the purpose; and should there be a deficiency, the amount of the stock, or the value of the ring to be purchased would abate proportionably. If, however, any leg- acy should be given for a valuable consideration, it "nail not be liable to abatement with the other general legacies. An example of this exception to the usual rule occurs in the case of legacies given by husbands to their wives in consideration of their releas- ing their dower.(/t) And. by the act for the amendment of the (e) As-hburner v. McGuire, 2 Bro. C. C. 108. (/) Roberts v Pocock, 4 Ves. 150 ; Attwater v. Attwater, 18 Beav. 330. ig) Acton V. Acton, 1 Meriv. 178; Livesay v. Redfern, 2 Y. & C. 90. (A) Wilson V. Brownsmith, 9 Ves. 180. See, however, Townsend v. Martin, 7 Ilare, 471, q,i. ? (i) 1 Roper on Legacies, c. 3, a. 2. (/.) Burridge v. Bradyl, 1 P. Wms. 127 ; Norcott v. Gordon, 14 Sim. 258. 448 OF PERSONAL ESTATE GENERALLY. law relating to dowcr,(?) it is provided(m) that nothing therein contained shall interfere with any rule of equity or of any eccle- siastical court, by which legacies bequeathed to widows in satis- faction of dower are entitled to priority over other legacies. "When a legacy is bequeathed by a testator to his creditor, it is considered to be a satisfaction of the debt, if the legacy be equal to or greater than the amount of the dcbt.(??)^ But if it be less (/) Stat. 3 A 4 Will. IV, c. 105. (m) Sect. 12. («) Fowler v. FovTler, .3 P. Wms. 353 ; Fourdrin v. Gowdey, 3 M. & K. 383, 409 ; 2 Koper on Legacies, c. 17, s. 1 1 Edmonds v. Low, 3 Kay & J. 318. 1 A legacy will not be a satisfaction of the testator's debt, unless it was so intended. In the ease of Byrne et al. v. Byrne et al., Exrs., 5 Serg. & Raw. R. 54, Judge Yeates, in de- ciding this principle, uses the following lan- guage : "A rule has prevailed, that when- ever a person, by his will, gives a legacy as great, or greater than the debt he owes to the legatee, such legacy shall be a satisfaction of the debt, on the presumption that a man must be intended to be just before he is bountiful, and that his intent is to pay a debt, and not to give a legacy. The rule itself is not founded in reason, and often tends to defeat the bounty of testators ; and able chancellors have thought it more agree- able to equity, to construe a testator to be both just and generous, where the interest of third persons are not affected. And courts of justice will now lay hold of slight circum- stances to get rid of the rule. Legacies are considered as gratuities, and are always con- strued favorably. If they be less than the sum due, payable on a contingency, or a fu- ture day, on these, and t/ie like rircicmstatices, they will be construed as additional bounties, and not as satisfactions. And, although the contingency does not actually happen, and the legacy thereby becomes due, yet it shall not go in satisfaction of the debt, because a debt which is certain, stiall not be merged or lost by an uncertain and contingent recom- pense. For, whatever is to be a satisfaction of a debt, ought to be so 171 its creatioti, and at the very time it is given, which such con- tingent provision is not. . . . According to the most modern decisions, it is presumed, that the legacy must be, in ail respects, ejus- deni generis, to cause a satisfaction, of the debt, and an apparent intention, m the will, that the testator meant it as such." See, also, to the same effect. Smith, E.xr. , v. Mar- shall, 1 Root's R. 159; Strong v. Williams, Exr., 12 Mass. R. 392 ; Williams v. Crary, 5 Cow. R. 370, S. C. 8 Id. 246, and 4 Wend. R. 449; Byrne et al. v. Byrne et al., Exrs., 5 Serg. & Raw. R. 64; Edelen's Exrs. v. Dent's Admrs., 2 Gill & Johns. R. 185; Fitch v. Peckham, Exrx., 16 Vt. R. 151 ; Perry, Exr., V. Maxwell, Exrx., 2 Dev. E. R. 488 ; Stagg V. Beekman, 2 Edw. C. R. 89 ; Van Riper et al. V. Van Riper et al., Exrs., 1 Green's C. R. 1 ; Ward, Exr., v. Coffield, 1 Dev. E. R. 108 ; Dey v. Williams et al., 2 Dev. & Bat. E. R. 66 ; Ladson et al. v. Ward et al., Exrs., 1 Desauss. R. 315 ; Caldwell's Exr. v. Kink- head et al., 1 B. Mon. R. 230; Cloud v. Clinkehbeard's Exrs., 8 B. Mon. R. 398; Waters v. Howard et al., 1 Md. C. Decs. 112. Nor is a legacy by a creditor to his debtor, prima facie, a discharge or release of his debt ; and the debt may be set off by the ex- ecutor, against the legacy ; Strong's Exr. v. Bass et al., 35 Pa. St. R. 333; but, if the will, or the declarations of the testator, be- fore, at, or after the making of the will, show that such was his intention, the law, always, if possible, favoring the wishes of the dece- dent, will construe in accordance with that intention ; Clark v. Bogardus, 12 AVend. R. 67 ; Ricketts v. Livingston, Exr., 2 Johns. Gas. 97 ; Sorelle's Exrs. v. Sorelle, 5 Ala. R. 245 ; Stagg v. Beekman, 2 Edw. C. R. 89 ; Zeigler et al., Exrs., v. Eckhart, 6 Pa. St. R. 13 ; Lewis v. Thompson, 2 Richard. E. R. 75 ; Gallego v. Gallego's Exr., 2 Brockenb. R. 291. OF A WILL. 449 than tlie debt,(o) or ^payable at a difterent t\me,{p) or of a r^q-iQ-i different nature from the debt,(5') or if the debt be con- ^ -^ tracted subsequently to the date of the will,(?^) or if the will con- tain an express direction for payment of debts and legacies,(s) the legacy will not be a satisfaction. The leaning of the courts is against the doctrine of the satisfaction of debts by legacies, a doctrine which seems to have been established on rather ques- tionable grounds. When, however, a sum of money is due to a child by way of portion, the inclination of the courts is against double portions ; and a legacy to such a child is accordingly re- garded as a satisfaction of the portion either in part or in whole, notwithstanding such legacy may be less than the portion, or payable at a different period.(<) A bequest of the residue, or of a share in the residue, of the testator's estate, will also be consid- ered as a satisfaction _^,)ro tanto.{u) The presumption of satisfaction is indeed so strong, that it is difficult to say what circumstances of variation between the portion and the legacy will be sufficient to entitle the child to both. By a statute of George the Second, commonly called the Mort- main AQ.t,{x) no hereditaments, nor any money, stock in the pub- lic funds, or other personal estate whatsoever to be laid out in the purchase of hereditaments, can be conveyed or settled for any charitable uses (with a few exceptions), otherwise than by deed, with certain *formalities mentioned in the act.(7/) r^^ooA-i And all gifts of hereditaments, or of any estate or interest therein, or of any charge or incumbrance affecting or to affect any hereditaments, or of any personal estate to be laid out in the purchase of any hereditaments, or of any estate or interest therein, (o) Graham v. Graham, 1 Ves. Sen. 262. {p) Nicholls V. Judson, 2 Atk. 300 ; Hales v. Darell, .3 Beav. 324. (q) Alleyn v. Alleyn, 2 Ves. Sen. 37 ; Bartlett v. Gillard, 3 Russ. 149 ; Fourdrin v. Qow- dey, 3 M & K. 383, 409. ()■) Cranmer's Case, 2 Salk. 508. (s) Richardson v. Greese, 3 Atk. 65 ; Hassell v. Hawkins, 4 Drew. 468. (0 HinchclifiFe v. Hinchcliffe, 3 Ves. 516 ; Weall v. Rice, 2 Russ. & Myl. 251. {u) Rickinan v. Morgan, 2 B. C. C. 394 ; Earl of Glengall v. Barnard, 1 Keen, 769 ; affirmed 2 H. of L. Cas. 131 j Beckton v. Barton, 27 Beav. 99, 106 j Montefiore v. Guedella, 1 ne Gex; F. & J. 93. {x) Stat. 9 Geo. II, c. 36, s. 1. (y) See Principles of the Law of Real Property, 55, 1st ed. ; 58, 2d ed. ; 60, 3d &, 4th eds. j 63, 5th ed. ; 65, 6th ed. 29 450 OF PERSONAL ESTATE GENERALLY. or of any charge or incumbrance aftecting or to affect the same, to or in trust for any charitable uses whatsoever, are rendered void if made in any other form than by the act is directed. (2') This act has been very strictly construed, and has been held to prohibit the bequest for charitable purposes of personal estate in any degree savoring, as it is said, of the realty. Thus, it has been decided that money secured on mortgage of real estate,(«) shares in a canal navigation, (6) and leasehold estates, (c) cannot be left by will for any charitable purpose. But more recently, the strictness of the courts appears to have relaxed; and it has lately been held that money secured by a policy of assurance, although the company may invest their funds in real estates,((i) and shares in a banking company authorized to invest money on mortgage of real estates,(c) or in a mining company, (/) are not within the statute. So railway scrip, (^^) and shares in gas companies,(A) docks, railways, and canals, («) although such shares may not be r-.^^--, *expresslv declared by the acts establishino; the under- r 3211 i .-' ./ o ^ ^ " -* takings to be personal estate, are now held to be unaifect- ed by the statute. But debentures, by which such undertakings with their rates and tolls are mortgaged, have been held to be within the act •,{k) though such debentures as are mere bonds or covenants to pay money, and not mortgages, are clearly unaffect- ed by it.(^) With regard to the bequest of money to be laid out in the purchase of hereditaments, it has been decided that a be- quest of money to be laid out in building on land already in mortmain is good ;(??!) but if some land already in mortmain be not distinctly referred to, a bequest of money for building for (2) Sect. 3. (a) Attorney-General v. Meyrick, 2 Ves. Sen. 44. {b) Howse V. Chapman, 4 Ves. 542. (c) Attorney-General v. Graves, Amb. 155. (d) March v. Attorney-General, 5 Beav. 433. (e) Ashton v. Lord Langdale, 4 De Gex & Smale, 402 ; S. C. 15 Jur. 868 ; Myers v. Peri- gal, 2 De Gex, Mac. & Gord. 599. (/) Hayter v. Tucker, 4 Kay & J. 243. See Morris v. Glynn, 27 Beav. 218. {g) Ashton V. Lord Langdale, iibi svpra. (/t) Thompson v. Thompson, 1 Coll. 381 ; Sparling v. Parker, 9 Beav. 450. {i) Hilton V. Giraud, 1 De Gex & Smale, 183 ; Sparling v. Parker, lebi supra ; Walker v. Milne, 11 Beav. 507; Ashton v. Lord Langdale, iibi svpra ; Edwards v. Hall, 6 De Gex, M. & G. 74; Linley v. Taylor, 1 GiflF. 67; affirmed, 2 De Gex, F. & J. 84. (/,) Ashton V. Lord Langdale, ubi supra ; Re Langham's Trust, 10 Hare, 446. (/) Ashton V. Lord Langdale, ubi supra. {m) Glubb V. Attorney-General, Amb. 373. OF A WILL. • 451 any charitable purpose will be void, as implying a direction for the purchase of land on which to bnild.(/i) And it has also been, held that a gift is void which tends directly to bring fresh lands into mortmain, as a gift of money to a charity on condition that other persons provide the land.(o) This, however, has been over- ruled. (j^) And if the purchase of land be not involved in the gift, there is no law which prevents the bequest of purely per- sonal property to any amount for charitable purposes.^ A be- quest to a charity ought, therefore, to be directed to be paid out of such part of the testator's personal estate as he may lawfully bequeath for such a purpose. For if this precaution should be neglected, the charitable legacies will fail in the proportion which the personal assets savoring of the realty may bear to those which are purely personal.(g) *Other bequests which require some care are those to r:i:q99-i illegitimate children. It is very doubtful whether a be- L *" J quest to the future illegitimate children of a particular woman is not void as tending to encourage immorality. (r) And it is certain that a bequest to the future illegitimate children of a particular man is void, as the courts cannot enter into the in- quiry which w^ould be necessary to identify such children. (s) A child prima facie means a legitimate child; a bastard is con- sidered by the law as nullius Jilius. Accordingly, an illegitimate (;?) Pritcliard v. Arbouin, 3 Russ. 456 ; Smith v. Oliver, 11 Beav. 481. (o) Attorney-General v. Davies, 9 Ves. 535 ; Mather v. Scott, 2 Keen, 172; Trye v. Cor- poration of Gloucester, 14 Beav. 173. (p) Philpott V. St. George's Hospital, 6 H. of L. Gas. 338. (q) Attorney-General v. Tyndall, 2 Eden, 207 ; S. C, 2 Amb. 614 ; Hobson v. Black- burn, 1 Keen, 273 ; Philanthropic Society v. Kemp, 4 Beav. 581 ; and see Robinson v. Gel- dard, 3 Mac. & Gord. 735 ; Tempest v. Tempest, 7 De Gex, Mac. & Gord. 470. (r) See 2 Jarm. Wills, 153 ; 202, 2d ed. ; 204, 3d ed. (s) Wilkinson v. Adams, 1 Ves. & Beames, 466. 1 By the 11th section of an act of the leg- and, at the time, disinterested witnesses, at islature of Pennsylvania (commonly called the least one calendar month before the decease "Price Act," from the name of its originator), of the testator or alienor; and all disposi- passed 20th April, 1855, it is provided, that tions of property contrary hereto, shall be "No estate, real or personal, shall hereafter void, and go to the residuary legatee or de- be bequeathed, devised, or conveyed, to any visee, ne.xt of kin, or heirs, according to body politic, or to any person, in trust for re- law," etc. Purd. Dig. (1801), p. 1018, sec. ligious or charitable uses, except the same be 22. done by deed or will, attested by two credible, 452 OF PERSONAL ESTATE GENERALLY. child can never take under a gift to children, unless it be clear, upon the terms of the will, or according to the state of facts at the making of it, that legitimate children never could have taken. (<) An illegitimate child may, however, take under any gift in which he is sufficiently identified as the object of the tes- tator's bounty. Thus, a bequest to the child of which a woman is now pregnant is good.{u) And if illegitimate children have acquired the reputation of being the children of the testator or any other person, and it appear by necessarj^ implication on the face of the will that such persons were intended in a bequest to children, they will be entitled, not on account of their being children, but on account of their reputation as such.(x) After payment of the testator's debts and legacies, the residue of his personal estate must be paid over to the *residuary '- -' legatee, if any, named in the will. A will of personal estate has always been considered as speaking from the death of the testator; and it is now expressly enacted, that every will shall be construed, with reference to the real and personal estate com- prised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.(?/) Hence, it follows that all personal property acquired by the testator between the time of making his will and his decease will pass under it. If any legacy should lapse by the death of the legatee in the testator's lifetime, or should fail from being contrary to law, it will fall into the residue, and belong to the residuary legatee. And a legacy will lapse by the death of the legatee in the testator's lifetime, although given to the legatee, his executors, adminis- trators, and assigns,(2:) for these words are merely inserted in analogy to the limitation of real estate to a man and his heirs. If a bequest be made to two or more as joint tenants, and one of tbem die in the lifetime of the testator, his share will not lapse, {t) Cartwrigbt v. Vawdry, 5 Ves. 530 ; Godfrey v. Davis, 6 Ves. 43 ; Harris v. Lloyd, 1 T. & Russ. 310 ; Bagley v. Mollard, 1 Russ. & M. 581 ; Dover v. Alexander, 2 Hare, 275 ; Re Overhill's Trust, 1 Sm. & Giff. 362. {u) Gordon v. Gordon, 1 Meriv. 141. (x) Wilkinson v. Adam, 1 Ves. & B. 422 ; Gill v. Shelley, 2 Russ. & My. 336 : Meredith V. Farr, 2 You. & Coll. 525. (y) Stat. 7 Will. IV & 1 Vict. c. 26, s. 24. {z) Elliott V. Davenport, 1 P. Wms. 83. OF A WILL. 453 but will survive to the others. (a) But if the bequest be to two or more iu common, and one of them die in the testator's life- time, his share will lapse ;(6) unless the bequest be made to a class, as to the children of A. in equal shares, in which case all who answer that description at the testator's decease,(c) and also (if the period of distribution be postponed by the will) all who come into being before such period,(c?) will be entitled to divide the bequest *amongst them. It is, however, provided by r>i. 09^-1 the recent act for the amendment of the laws with respect to wills, that where any person, being a child or other issue of the testator, to whom any personal estate shall be bequeathed for any interest not determinable at or before the death of such person, shall die in the testator's lifetime leaving issue, and any such issue shall be living at the death of the testator, such be- quest shall not lapse, but shall take eflect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.(e)^ The (ff) Morley v. Bird, 3 Ves. 628, 631. {b) Bagwell v. Dry, 1 P. AVms. 700 ; Page v. Page, 2 P. Wms. 489 ; Barber v. Barber, 3 My. & Craig, 688 ; Bain v. Lesher, 11 Sim. 397. (c) Viner v. Francis, 2 Cox, 190 ; 2 Jarm. Wills, 74; 126, 2d ed. ; 142, 3d ed. j Lee v. Pain, 4 Hare, 250. (d) Ayton V. Ayton, 1 Cox, 327; 2 Jarm. Wills, 75 ; 127, 2d ed. ; 143, 3d ed. (e) Stat. 7 Will. IV & 1 Vict. c. 26, s. 33. 1 Statutes resembling this provision, are in lineal descendant of any testator, shall be force in most of the States of the Union ; but deemed or held to lapse, or become void, by in many of them, these enactments are more reason of the decease of such devisee or lega- comprehensive than those prescribed by the tee, in the lifetime of the testator, if such de- laws of England, including devises as well as visee or legatee shall leave issue surviving the legacies within the letter of the acts, and em- testator ; but such devise or legacy, shall be bracing other than lineal descendants. Thus, good and available in favor of such surviving in New Hampshire, "The heirs in the descend- issue, with like effect as if such devisee or ing line, of any devisee or legatee deceased legatee had survived the testator, saving al- before the testator, shall take the estate de- ways to every testator the right to direct vised or bequeathed, in the same manner the otherwise. No devise or legacy hereafter legatee or devisee would have taken the same, miide in favor of a brother or sister, or the if he had survived." N. II. Compil. Stats, children of a deceased brother or sister of any (1853), pp. 400, 401, sec. 11. The same is testator, such testator not leaving any lineal true of the laws of Pennsylvania, which also de.scendants, shall be deemed or held to lapse, contain provisions in favor of brothers and or become void, by reason of the decease of sisters and their children, as regards such such devisee or legatee, in the lifetime of the devises or legacies ; as will be seen by a ref- testator, if such devisee or legatee shall leave erence to Purd. Big. (1861), p. 1017, sees. 14 issue surviving the testator ; but such devise and 15, which are in these words : "No de- or legacy, shall be good and available in favor vise or legacy in favor of a child, or other of such surviving issue, with like eflect as if 454 OF PERSONAL ESTATE GENERALLY. effect of this provision is curious. If the legatee had died im- mediately after the testator, leaving a wall, it is evident that the estate bequeathed to him would have passed under his will. It has been decided, therefore, that the will of the legatee shall, after his death, operate on the estate bequeathed to him in the same manner as if he had been liviiig.(/) This provision has been held to apply to a testamentary appointment under a general power of appointment,(_^) but to be inapplicable to a testamen- tary appointment under a power to appoint amongst the testator's children. (A) If there were no residuary legatee, the residue of the testator's personal estate, after payment of debts and legacies, formerly {/) Johnson v. Johnson, 3 Hare, 157. (g) Eccles V. Cheyne, 2 Kay & J. 676. (70 Griffiths v. Gale, 12 Sim. 364. such devisee or legatee had survived the tes- tator, saving always to every testator the right to direct otherwise." In Georgia, it is enacted, that " From and after the passage of this act, where any per- son named as legatee in the will of anj' other person, shall die before the testator, leaving issue that .r-, codicil appointed any executor, such executor shall be *" -^ deemed by courts of equity to be a trustee for the person or persons (if any) who would be entitled to the estate under the Statute of Distributions, in respect of any residue not expressly disposed of, unless it shall appear by the will or any codicil thereto, (m) -that the person so appointed executor was intended to take such residue beneficially. The Statute of Distributions is, that under which the personal estate of any one- dying intes- tate is distributed between his widow and next of kin. An account of this statute will be found in the next chapter. *CH AFTER IV. [*326] OF INTESTACY. The ecclesiastical courts until recently had jurisdiction not only over the wills of testators, but also over the goods of persons dying intestate. This jurisdiction, though of long standing, ap- pears to have been at first gradually acquired. In early times the clergy, being possessed of almost all the learning, appear to have been the principal framers of wills. The power they thus acquired was exercised for their own benefit, ever}' man being expected, on making his will, after bequeathing to his lord his heriot, in the next place to remember the church. («) If, how- ever, a man should have died intestate, without opportunity of making this provision, the distribution of his goods devolved on the church, together with his friends, the lord first having taken (i) Pririg V. Print;, 2 Vern. 99 ; Bii<;well v. Dry, 1 P. Wins. 700. (j) Udchfield V. Carele.s.s, 2 P. Win.s. 158. (/) Stnt. 11 Geo. IV & 1 Will. IV, c. 40. (X) Mullen V. Bowman, 1 Coll. 197. (w) Love v. Gaze, 8 Beav. 472. (a) Glanville, lib. 7, c. 5 ; Bract. fiO a; Flela, lib. 2, c. 57. 456 OF PERSONAL ESTATE GENERALLY. his lieriot.(/>) The wife and the children were entitled to their shares; and that part of the goods which the intestate had power to dispose of by his will (called the portion of the deceased) was applied by the church in pios usus. This application to pious uses appears to have been as follows : in the first place, the be- quest, which it was to be presumed the intestate would have made to the church, was retained, and the residue was then dis- posed of in paying the debts of the deceased, and distributed amongst his wife and children, his parents and their relatives. That this was the case appears fi-ora the complaints which were made by the clergy of those days, of the interference of the tem- *poral lords in cases of interstacy, whereby the distribu- '- -^ tion of the effects in the manner pointed out was pre- vented.(c') The clergy themselves, however, do not appear to have been always free from blame; for they are accused of having frequently taken the whole of the intestate's portion to themselves, making no distribution, or at least an undue one, amongst the creditors and relatives of the deceased ;(c^ and in order to remedy this evil, it was enacted in the reign of Edward I, by one of the very few statutes then passed relating to per- sonal estate, (e) that the ordinary should be bound to answer the debts of an intestate, so far as his goods would extend, in the same manner as the executors would have been bounden if he had made a testament. The right of the creditor was thus clothed with a remedy; for, under this statute, an action at law might be brought by the creditor against the ordinary for the payment of his debt;(/) but the right of the relatives to the sur- plus still remained undefined. The duty of administering intestate's effects was not, as may be supposed, usually performed by the bishops in person. For this purpose they usually appointed an administrator ; but, as (i) Bract. 60 b ; Fleta, vhi supra. (c) Matthew Paris, 951, Additamenta, 201, 204, 209 (Wats's ed. London, 1640) ; Consti- tutions of Boniface, Constitutiones Provinciales, 20, at the end of Lyndewood's Provinciale (Oxen, 1679), recited also in a Constitution of Archbishop Stratford (Lynd. Prov. lib. 3, tit. 13). See Gent Mag. New Series, vol. ii, 355, 474. See, also, Dyke v. Walford, Privy Council, 12 Jurist, 839. {d) Fleta, lib. 2, c. 57. («) Stat. 13 Edw. I, c. 19. (f) 1 Ro. Abr. 906 ; Bac. Abr. tit. Executors and Administrators (E). OF INTESTACY. 457 personal property rose in importance, it became desirable that this administrator should not be considered as the mere agent of the bishop, but should himself have a locus standi in the king's courts. It was accordingly enacted by a statute of the reign of Edward ni,(_^) that where a man died intestate the *ordi- r^^qno-i naries should depute the next and most lawful friends of the deceased to administer his goods, which persons so deputed should have action to demand and recover as executors the debts due to the deceased, to administer and dispend for the soul of the dead; and should answer also, in the king's courts, to others to whom the deceased was holden and bound, in the same man- ner as executors should answer. By a subsequent statute(A) ad- ministration might be granted to the widow of the deceased, or to the next of his kin, or to both, as by the discretion of the or- dinary should be thought good. The widow was usually pre- ferred to the next of kin in the grant of administration ;(z) and a joint grant was seldom made, so seldom, indeed, that the powers of co-administrators appear to be still a matter of doubt.(J) In granting administration to the next of kin, the ecclesiastical courts were guided by the right to the property to be adminis- tered.{A) This right will be hereafter explained. If none of the next of kin would take out administration, a creditor might, by custom, do so, on the ground that he could not be paid his debt until representation were made to the deceased ;(^ and for want of creditors, administration might be granted to any person at the discretion of the court.(m) But the Court of Probate Act, 1857, (w) has now abolished the whole of the jurisdiction of the ecclesiastical courts over the effects of intestates; and adminis- tration of the effects of deceased persons is now granted by that court in the same manner as the probate of wills.(o) And after the decease of any person intestate, his personal estate vests *in the judge of the Court of Probate for the time being, until letters of administration are granted, in the same (g) 31 Edw. Ill, c. 11. (h) 21 lien. VIII, c. 5. (/) Webb V. Needham, 1 Addani.s, 494. (./) Shep. Touch, 48.5, 486 ; Williaiu.s on Executors, pt. 3, bk. 1, ch. 2. (/) In the Goods of Gill, 1 Ilagg. 342. (/) Webb V. Needham, 1 Addams, 494. (m) Williams on Executors, pt. 1, bk. 5, ch. 2, s. 1. («) Stat. 20 & 21 Vict. c. 77, amended by stat. 21 & 22 Vict. c. 95. (o) Ante, p. 307. [*329] 458 OF PERSONAL ESTATE GENERALLY. manner and to the same extent as they formerly vested in the ordinary, (py ip) Stat. 21 & 22 Vict. c. 95, s. 19. 1 In the State of New York, " Administra- nounee tbe administration, they shall, if resi- tion, in ease of intestacy, shall be granted to dent within the county, be cited by tbe judge the relatives of the deceased, who would be for that purpose. entitled to succeed to his personal estate, if " Secondly, if the persons so entitled toad- they, or any of them, will accept the same, in ministration, are incompetent, or evidently the following order: First, to the widow; un.«uitable for the discharge of the trust, or second, to the children ; third, to the father ; if they neglect, without any suflBcient cause, fourth, to the brothers; fifth, to the si.sters ; for thirty days after the death of tbe intes- sixth, to the grandchildren ; seventh, to any tate, to take administration of his estate, the other of the nest of kin, who would be en- judge of probate shall commit it to one or titled to share in the distribution of the es- more of the principal creditors, if there be tate. Tf any of the persons, so entitled, be mi- any competent, and willing to undertake the Eors, administration shall be granted to their trust. guardians; if none of the said relatives or "Thirdly, if there be no such creditor, the guardians will accept the same, then to the judge shall commit administration to such creditors of the deceased ; and the creditor other person as he shall think fit ; provided, first applying, if otherwise competent, shall however, be entitled to a preference; if no creditor "Fourthly, that if the deceased were a apply, then, to any other person or persons married woman, administration of her estate legally competent ; but in the city of New shall in all cases be granted to her husband, York, the pub ic administrator shall have if competent and willing to undertake the preference, after the next of kin, over credit- trust, unless she shall, by force of a marriage ors and all other persons. And in the case of settlement, or otherwise, have made some a married woman dying intestate, her bus- testamentary disposition of her separate es- band shall be entitled to administration, in tate, or some other provision, which shall preference to any other person, as herein- render it necessary or proper to appoint some after provided. other person to administer her estate ; and " Where there shall be several persons, of provided, also, the same degree of kindred to the intestate, "Fifthly, that if the deceased leaves no entitled to administration, they shall be pre- widow or next of kin in this State, adminis- ferred in the following order : First, males to tration of his estate shall be granted to a females ; second, relatives of the whole blood, public administrator in preference to credit- to those of the half blood ; third, unmarried ors ;" Gen. Stats, of Mass. (18G0) p. 483, § 1. women, to such as are married; and ♦when In Pennsylvania, "Whenever letters of there are several persons equally entitled to administration are by law necessary, the administration, the surrogate may, in his dis- register having jurisdiction shall grant them cretion, grant letters to one or more of such in such form as the case shall require, to th® persons;" 3 Rev. Stats, of N. Y. (5th ed.), widow, if any, of the decedent, or to such of pp. 158, 159, sees. 27 and 28. his relations or kindred, as by law may be In Massachusetts, "Administration of the entitled to the residue of his personal estate, estate of an intestate, shall be granted to or to a share or shares therein after payment some one or more of the persons hereinafter of his debts, or he may join with the widow mentioned; and they shall be respectively en- in the administration, such relation or kin- titled thereto, in the following order, to wit : dred, or such one or more of them, as he shall " First, his widow, or next of kin. or both, judge will best administer the estate, pre- as the judge of probate shall think fit ; and if ferring always of those so entitled, such as they do not voluntarily either take or re- are in the nearest degree of consanguinity OF INTESTACY. 459 The administrator, when appointed, has the same right to, and power over, all the personal estate of the intestate as his execu- tors would have had if he had made a will,(9') and this right and power relate back to the time of the intestate's decease.(?^) The same duty also devolves upon the administrator of paying the debts in the first place. The provisions of the recent statutes for protection of executors in distributing the assets of their testator extend also to the administrator of the effects of an intestate. (5) He has also the same privilege as an executor of retaining his own debt in preference to all others of the same degree. (i") But the surplus, after payment of the debts, must be distributed amongst the relatives of the intestate in proportions to be here- after mentioned. In order to enable the administrator to inform himself of the state of the assets, and to pay the debts of the deceased, the same period of a year from the time of the decease as is allowed to an executor is also o-iven to the administrator be- o (q) Williams on Executors, pt. 2, bk. 1, ch. 1. (r) Tharpe v. Stallwood, 5 Man. & Gran, 760, E. C. L. R. vol. 44 ; Foster v. Bates, 12 M. & W. 226 ; Welehman v. Sturgis, 13 Q. B. 552, E. C. L. R. vol. 66. (s) Stats. 13 & 14 Vict. c. 35, s. 19 ; 22 & 23 Vict. c. 35, ss. 27, 28, 29 ; 23 & 24 Vict. c. 38, s. 14. A}He, pp. 313, 314; but not stat. 23 & 24 Vict. c. 145, s. 30, ante, p. 312. {t) Warner v. Wainsford, Hob. 127 ; Williams on Executors, pt. 3, bk. 2, cb. 2, s. 6. with the decedent, and also preferring males son's Stat. Ls. of Tenn., p. 72, sec. 8 ; Ls. to females ; and in case of the refusal or in- of Del., Rev. Code (1852), p. 297, sec. 9; competency of every such person, to one or Dig. of the Stats, of Ark., p. Ill, sects. 6, 7, more of the principal creditors of the de- and 8; How. & Hutch. Stat. Ls. of Missi., p. cedent, applying therefore, or to any fit per- 396, sec. 35 ; Oldham & White's Dig. of the son at his discretion ; provided, that if such Ls. of Texas, p. 166, art. 705 ; 2 Matthews's decedent were a married woman, her bus- Dig. (Va.), p. 654, ^ 4; 2 Compiled Ls. of band shall be entitled to the administration Michigan (1857), p. 876, art. 2879, sec. 3 ; in preference to all other persons : and pro- Code of Ala. (1852), p. 338, § 1667; 1 Md. vided further, that in all eases of an admin- Code (1860), p. 621, art. 93, sees. 18-31 ; istration with the will annexed, where there Rev. Stats, of Maine (1857), p. 411, sec. 13; is a general residue of the estate bequeathed, Nixon's Dig. Ls. of N. J. (1861), p. 276, sec. the right to administer shall belong to those 7: Rev. Code of N. C. (1855), p. 282, sec. having the right to such residue, and the ad- 2 ; vol. i, Rev. Stats, of Ky. (1860), p. 502, ministration in such case shall be granted by art. 2 ; 1 Rev. Stats, of 0. (1860), p. 568, the register, to such one or more of them as sec. 12 ; Ls. of Iowa (1860), p. 409, sec. 2343; he shall judge will best administer the es- Cobb's New Dig. of the Ls. of Geo. (1851), tate." Purd. Dig. (1861), p. 277, sec. 28. vol. i, p. 305, sec. 59 ; Tfaomps. Dig. of the For the statutes of the several States on Ls. of Flu., p. 196, sec. 5 ; Rev. Stats, of this subject, see N. H. Compiled Stats. Vt. (1839), pp. 263, 264, sec 3; Civil Code (1853), p, 404, sec. 2 ; Stats, of S. C, vol. i, of La., arts. 1114 to 1117. pp. 108, 109, sec. 16 ; Caruthers & Nichol- 460 OF PERSONAL ESTATE GENERALLY. fore he can be required to make any distribution. (?<) But, not- withstanding this delay, the interest of the persons entitled to the surplus vests in them from the time of the decease of the intes- tate ; so that in case any of them should die within a twelvemonth P^oqn-i ^fter the decease of the intestate, the share *of the person -•so dying will pass to his own executors or administra- tors, (x) In some instances administration is granted for a limited pur- pose, or confined to a given time. Of this we have already had an instance in the case of administration durante minore cetate, when the sole executor named in a will is under age;(?/) and the same sort of administration is granted on intestacy, in case of the minority of the next of kin. (2-) So if the executor or next of kin, as the case may be, should be out of the realm at the time of the decease of the testator or intestate, the court will grant a limited administration durante absentia, which will expire the moment of the return of such executor or next of kin. And if the executor should prove the will, or if any person should obtain letters of administration, and afterwards go to reside out of the jurisdiction of the English courts, the court is empowered by act of Parlia- ment(rt) to grant administration, at the end of a year from the death of the testator or intestate. Again, when a suit concern- ing the right of administration is pending in the Court of Pro- bate, that court may appoint an administrator pendente lite, who will have all the rights and powers of a general administrator, other than the right of distributing the residue of the personal estate ;(6) and the administrator so appointed may receive such reasonable remuneration for his trouble as the court may think fit.(c) The court also may appoint such administrator or any other person receiver of the real estate of the deceased pending P^oqn ^"y ^^^^ touching the validity of his *will, if it affect such '- -• real estate.(6?) So if a will should have been made, but (7/) Stat. 22 & 23 Car. II, e. 10, s. 8. ' (.r) Edwards v. Freeman, 2 P. Wms. 442. (y) A»te, p. 302. {z) Williams on Executors, pt. 1, bk. 5, eh. 3, s. 3. {a) Stat. 38 Geo. Ill, c. 87, ss. 1-5, extended by stats. 20 & 21 Viet. c. 77, s. 74; 21 ) Stat. 22 & 23 Car. II, c. 10, s. 5. (q) See Burton's Compendium, pi. 1402. («) Stat. 1 Jac. II, c. 17, s. 7 (0 Jessopp V. Watson, 1 My. & K. 665 ; Burnet v. Mann, 1 My. &. K. 672, n. (?<) Lloyd V. Tench, 2 Ve.s. Sen. 215 ; Durant v. Prestwood, 1 Atk. 454 j West, 448. (x) Duke of Rutland v. Duchess of Rutland, 2 P. Wms. 216. 1 Each State of the Union has its own difiFering from each other, are but variations Statute of Distributions ; and these, slightly of the Statutes of Charles II, and James II. 464 OF PERSONAL ESTATE GENERALLY. brothers and sisters take equally, the children of such as may be dead standing in loco loarentis. Beyond brothers' and sisters' children, no right of representation belongs to the children of rel- atives with respect to the shares which their deceased parents would have taken. And if there be neither brother, sister, nor mother of the intestate living, his personal estate will be distribu- ted in equal shares amongst those who are next in degree of kin- dred to him. In tracing the degrees of kindred, in the distribution of an intestate's personal estate, no preference is given to males over females, nor to the paternal over the maternal line,(^) nor to the whole over the half blood, as in the case of descent of real estate; nor does the issue stand in the place of the ancestor. The degrees of kindred are reckoned according to the civil law, both upwards to the ancestor and downwards to the issue, each gener- ation counting for a degree.(2:) Thus from father to son, or from son to father, is one degree; from grandfather to grandson, or from grandson to grandfather, is two degrees; and from brother to brother is also two degrees, namely, one upw^ards to the father, and one downwards to the other son. So from uncle to nephew is three degrees, one upwards to the common ancestor, and two downwards from him; and from nephew to uncle is also three de- grees, two upwards and one downwards. If, therefore, there be neither issue, father, brother, sister, nor mother of the intestate living, such persons as are his next of kin, according to the rule *above laid down are entitled in equal shares i^er capita to '- ^ his personal estate, subject to his wife's right to a moiety, should she survive him. As the kindred becomes more distant, the number of persons entitled, if living, as well as the difficulty of proving their respective pedigrees, becomes prodigiously aug- mented. " It is at the first view astonishing," says Blackstone,(a) "to consider the number of lineal ancestors which every man has within no very great number of degrees : and so many differ- ent bloods is a man said to contain in his veins as he hath lineal ancestors. Of these he hath two in the first ascending degree, (y) Moor v. Barhatn, 1 P. Wms. 53. (z) Mentney •;; Petty, Pre. CLa. 693; Wallis v. Hodson, 2 Atk. 117; 2 Black. Com. 504, 515. {a) 2 Black. Com. 203. OF INTESTACY. 4G5 his own parents; he hath four in the second, the parents of his father, and the parents of his mother; he hath eight in tlie third, the parents of his two grandfathers and two grandmotiiers; and, by the same rule of progression, he liath an hundred and twenty- eight in the seventh ; a thousand and twenty-four in the tenth ; and at the twentieth degree, or the distance of twenty genera- tions, every man hath above a million of ancestors, as common arithmetic will demonstrate." The number of collateral relations who may claim through such ancestors is of course far more numerous. The estates of intestate freemen of the city of London, (6) and of persons having their fixed or general residence within the archiepiscopal province of York (excepting the diocese of Ches- ter), were until recently distributed according to peculiar cus- toms, apparently derived from the ancient mode of distribution. (c) Some parts of Wales also appear to have been subject to peculiar customs of distribution; for these several customs, though post- poned to the right of testamentary disposition by the statutes to which we have already *referred,(cf) were nevertheless not pggg-i abolished by those statutes in the event of no will being made. But a recent statute has now altogetlier abolished all customary modes of administration. (c) The shares of persons claiming any personal estate of the amount or value of 201. or upwards under an intestacy are sub- ject to the same duty as legacies to persons of the same degree of kindred.(/)i If there be no next of kin, the crown, by virtue of its prerogative, will stand in their place, (^f) but subject always to the widow's right to a moiety in case she should survive.(A) (h) Onslow V. Onslow, 1 Sim. 18. (c) Williams on Executors, pt. 3, bk. 4, ch. 2. (d) Ante, p. 294. (e) Stat. 19 & 2n Vict. c. 94. (/) Stat. 55 Geo. Ill, c. 1«4. See avte, pp. 315, 316. (g) Taylor f. Iluygarlh, 14 Sim. 8; Powell v. Merrett, 1 Sma. & Giff. 381. See stat. 15 & 16 Vict. e. 3. [h) Cave v. Roberts, 8 Sim. 214. 1 See antf, p. 315, note 2. '60 466 OF PERSONAL ESTATE GENERALLY. The division of the personal estate of an intestate, effected by the Statute of Distributions, is remarkable for its fairness. The only provision which niii>-ht be amended is that which places the half blood on an equality with the whole. A corresponding equal- ity in interest and feelingbut rarely exists in actual life. The proper place for the half blood appears to be that now assigned to them in the descent of real estate, according to the recom- mendation of the Real Property Commissioners, namely, next after those of the same degree of the whole blood.(^) The ap- pointment of an executor or administrator, in whom the whole personal property is vested, with full power of disposition, tends greatly to simplify the title to leasehold estates and other prop- erty of a personal nature. It could be wished, however, that the office of an administrator were transmissible in the same manner as that of an executor. In other respects, the distribution of i-^ „ personal estate on intestacy ^approaches far more nearly -'to the disposition which the deceased himself would prob- ably have made, than the descent of real property, either at the common law or according to the custom of gavelkind. A person possessed only of small landed property usually devises it to trustees for sale, with full power to give receipts to purchasers, and directs the division of the produce by his trustees amongst his children in such shares as he may think just, with regard to the provision already made for any of them in his lifetime. He does not leave his younger children to beggary, in order that his wdiole property may devolve to his eldest son according to the course of the common law, a course pursued, as the author be- lieves, in no other civilized country in the world. (A) Neither does he leave it to all his sons equally in undivided shares, thus inflicting an injustice on his daughters, and allowing all plans for the improvement of the lands to be checked bj^ one dissentient voice, unless a partition should be resorted to, by wliich the property would be si"»lit up into parcels too small for the con- venience of agriculture. If by any accident a man should die without making his will, it would seem to be the province of an equitable legislature to make such a disposition of his property ((.) See Principles of the Law of Real Property, 77, 1st ed. ; 82, 2d ed. ; 86, 3d & 4th eds. ; 91, 5th ed. ; 97, 6th ed. (/.) Co. Litt. 191 a, n. (I), vi, 4. OF INTESTACY. 467 as would, in ordinary circumstances, most nearly correspond with his intention. It is true that when property is large, it is usually entailed on the eldest son and his issue, subject to moderate portions for the younger children. This custom of primogeniture is suited to the institutions of our country, and to the habits of the class to whi(;h large landed property usually belongs, and the author has no wish to see it disturbed. The settlements, however, by which these entails are created are more frequently made by deed than by will. They almost in- variably contain provisions for the portions of younger children, varying in amount with the value of the property; and whether *made by deed or will, they are usually long and intri- r>„qqo-i cate in their nature, providing for the numerous contin- gencies which may arise under the peculiar circumstances of each family. Nothing in fact can be more different than the devolution of an estate to the eldest son under a family settle- ment, and the descent on an intestacy to the eldest son as heir at law. In the one case he takes subject to the proper claims of the other members of his family; in the other he is bound to them by no obligation at all. There seems to be no method of making, in case of intestacy, any sort of disposition of landed property which might be reasonably simple, and at the same time resemble an ordinary familj^ settlement. If such a settle- ment be not made by deed, the owner has ample power of eiiecting the same object by his will. Intestacy, in fact, rarely happens to the owner of large landed property. The property which descends to heirs under intestacies, though large in the aggregate, is generally small in individual cases. When the wishes of all cannot be consulted, that which would have been the wish of the generality of intestates ought apparently to form the foundation of the rule. From a consideration of these cir- cumstances the reader may perhaps be induced to think, that if, in case of intestacy, the rules for the devolution of real and personal estate were identical, and with some slight variations similar to those which now exist as to personalty, the law on this subject would be rendered both more simple and more just. The descent of real estate to distant heirs, and the devolution of personalty to distant kindred, involve an amount of learning 468 OF PERSONAL ESTATE GENERALLY. and litigation, the abolition of wliich would perhaps he desirable. The family and near relations of an intestate have generally claims upon his bounty, Avhich ought not to be disappointed by the accident of his decease without making a will. But distant r*QQQn relatives have seldom any such claims, nor consequently L J *any expectation of such claims being fulfilled. To with- hold from them, therefore, that which they had never expected to enjoy, would not be to inflict a loss. Under the present system, the property of an intestate who has no near relations, is not unfrcquently frittered away in expensive contests between 0]3i30sing claimants, or else it devolves unexpectedly upon per- sons who, for want of previous education, are unable to make use of it with benefit either to themselves or to the community. In a country so heavily burdened as our own, any addition to the public income, not having the pressure of a tax, would be a very desirable acquisition. Such an addition might, as it ajjpears to the author, be very properly made by the devolution to the public of the properties of intestates having none but distant relatives. The country in which a man has lived, and in which his property has been acquired, or at any rate protected, has certainly some claims upon him, — claims which seem preferable to those of the man who, in the case of real estate, founds his title on his descent from the most remote male paternal ancestor of the intestate, (^) or who claims a share in the personalty be- cause he chances to be a survivor amongst the multitude stand- ins: in the fifth or sixth degree of a series of kindred wdiich increases, as it grows distant, in geometrical progression, (?w) (/) See Principles of the Law of Real Property, 78, 1st ed. ; 83, 2d ed. ; 87, 3d & 4th eds. ; 92, 5th dd ; 98, 6th ed. (m) The author's attention has since been called to a similar proposal in MilTs Political Economy, vol. i, pp. 272, 273, 2d ed. « OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 469 *CH AFTER V. [*340] OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. Marriage, being essential to the welfare of the community, and also involving- important consequences to the individuals concerned, is not on the one hand allowed to be unduly re- strained, nor on the other to be brought about by unfair means. Amongst the many striking differences between the laws ot real and personal property, by which our legal system is compli- cated, will be found the rules relating to attenipted restraints on marriage. Real estate is governed by the rules of the common law; but personal estate, when bequeathed by will, has, as we have seen,(«) long been subject to the jurisdiction of the ecclesi- astical courts, These courts have adopted, with some modifica- tion, the rules of the civil law, which is more favorable than the common law of England to liberty of choice in marriage. Hence it follows that some restrictions on marriage, which are valid when applied to a gift of real estate, are void when attempted to be imposed on a gift of personal property. The rules respecting real and personal estate so far agree that a condition annexed to a gift of either, that a person shall not marry at all, is void. (6) But a gift of either by a husband to his wife during her widow- hood is valid ;(c) neither would a gift of the income of property to a *single person until marriage, with a gift over on 1-^04-1-1 marriage, appear to be invalid.((/) When, however, a gift ^ -' is made, with a condition that it shall be forfeited if the donee marry without the consent of certain trustees or other persons, (a) A7>te, p. 306. (l>) Shep. Touch. 132; Perrin v. Lyon, 9 East, 170, 183 ; Ris-hton v. Cobb, 9 Sirn. 615 ; 5 My. & Or. 145 ; Morley v. Rennoldson, 2 Hare, 570. (c) Barton v. Barton, 2 Vern. 308. (d) See Right d. Compton v. Compton, 9 East, 267 ; Morley v. Rennold.son, 2 Hare, 570, 580 ; Webb v. Grace, 2 Phil. 701 ; Lloyd o. Lloyd, 2 Sim. N. S. 256 ; Heath v. Lewis, 3 De Gex, M. & G. 954. 470 OF PERSONAL ESTATE GENERALLY. the difference between the laws of real and personal estate be- comes conspicuous. If the gift be of real estate, or of money charged on real estate, it will cease on the event of marriage without the required consent.(e) But if it be a bequest of per- sonal property, the condition is regarded as merely in ierrorem and void,(/) unless accompanied by a bequest over to some other person on the marriage taking place Avithout consent ;(7) so that the legatee will be entitled to retain the legacy, notwithstanding his or her marriage without consent, unless on that event it be expressly given in some other manner. Such conditions in be- quests of personalty, when unaccompanied by a gift over, are called in terrorem, because, says Lord Eldon, " they are supposed to alarm persons, when we know they contain no terror whatso- ever. "(A)' (f) Reynish v. Martin, 3 Atk. 330, 333. (f) Bellasis v. Ermine, 1 Cha. Ca. 22. (g) Stratton v. Grymes, 2 Vern. 357 ; Harvey v. Aston, 1 Atk. 3(51 19 Ves. 1, 13. (/i) 19 Ves. 13. Clarke v. Parker, ^ Contracts in restraint of marriage, are regarded as contrary not only to the law and order of our nature, but also as contrary to sound policy, and hence are illegal and void. "Marriage, no doubt, may be made the sub- ject of regulation by qualified restrictions, under certain circumstances, but under no circumstances whatever, ought a general and entire restriction of it, to be countenanced and sanctioned by law Conditions, also, in restraint of marriage, are odious; and are, therefore, held to the utmost rigor and strictne.^s. They are contrary to sound policy." Middleton v. Rice, 6 Pa. L. Journ. 240. A condition in restraint of marriage, is void, therefore, when it is annexed to a leg- acy, without a limitation over; but if there is a limitation over, the condition is good ; Mcllvaine v. Gethen et al., 3 Whart. R. 583; Hoopes V. Dundas, 10 Pa. St. R. 77 ; Com- monwealth V. Stauffer, Id. 350; Middleton v. Rice, 6 Pa. L. Jour. 230 ; Bennett v. Robin- son, 10 Wat. R. 350; Stroud v. Bailey, 3 Grant's Cas. 310 ; Hughes v. Boyd, 2 Sneed"s R. 512 ; Hotz's Est., 48 Pa. St. R. 422 ; Par- sons V. Winslow, 6 Mass. R. 169 ; in the last of which cases, Judge Sedgwick remarks : "It is a general rule, that a condition an- nexed to a devise or bequest for life, whereby it is to be divested by the marriage of the devisee or legatee, is to be considered as in- tended purely in terrorem, and it is therefore void. To this rule there is an exception, that such condition shall be effectual, if the sub- ject of the devise or bequest be given over, so as to create an interest in another person. And again, this exception is restrained and limited. To give it effect, the giving over to a third person, must be an express giving over of the particular devise or legacy, unincor- porated with any other subject ; and it must also be immcdi.ate, to take effect at the timo of the marriage." But the doctrine just stated, will not apply to any case of condi- tional limitation ; for, as was said in Middle- ton V. Rice, " We must be careful not to confound limitations with conditions, for lim- ilatiovs may be good, notwithstanding they are seemingly in restraint of marriage, and were so by the civil, as well as by the common law. As, for instance, where the meaning of the testator is not to forbid marriage, but to grant the use of the thing bequeathed until the legatee shall marry ; or where the prohi- OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 471 In order to prevent marriages from being unfairly obtained, it is a rule in equity that all contracts for reward for procuring mar- riages (called marriage brocage) are void.(z) And if a parent or guardian should stipulate for any private benefit for the marriage of his child or ward, such stipulation would be void, and money actually paid under it would be decreed to be refunded.(j') [*342] *Few marriages are now contracted between persons possessing any amount of property, without a previous set- tlement of such property being made, in some stipulated manner, (i) Hall V. Potter, 3 Levinz, 411 ; Shower's Par. Gas. 76. O) 1 Fonblanque on Equity, 262; Smith v. Bruning, 2 Vern. 392. bition of marriage is not made conditionally by this word, if, . . . but by other words or adverbs of time : as when the testator willeth that his daughter or wife shall be executrix, or have the use of his goods, so lung as she shall remain unmarried." And see, also, Coppage V. Alexander's Heirs, 2 B. Mon. R. 314; Napier v. Davis et al., 7 J. J. Marsh. R. 286 ; Hoopes v. Dundas, 10 Pa. St. R. 77 ; Bennett v. Richardson, 10 Wat. R. 350. In the case, however, of a devise of real es- tate, to cease on the event of a subsequent marriage, it matters not whether the gift be 'coupled with a condition or a conditional limitation ; for, in either case, it will be good ; Phillips V. Medbury, 7 Conn. R. 573 ; Bailey v. Teackle et al., Exrs., Wythe's R. 173 ; Vance v. Campbell's Heirs, 1 Dana's R. 229 ; Commonwealth v. Stauffer, 10 Pa. St. R. 360 ; Bennett v. Robinson, 10 Wat. R. 350 ; Arnold v. Gilbert, 5 Barb. S. R. 191 ; Cor- nell V. Lovett's E.\r., 35 Pa. St. R. 103 ; Vaughn v. Lovejoy, 34 Ala. R. 437 ; and al- though in Middleton v. Rice, 6 Pa. L. Jour. 230, the learned judge seemed to incline to the opinion, that a devise of real estate, upon a condition subsequent in restraint of mar- riage generally, would be void as to the con- dition, yet that decision may be considered as overruled by Commonwealth v. Stauffer, and McCullough's Appeal, 12 P. St. R. 197; in which last it was said, " The provision for the wife, in this case, is a devi.se of the prof- its, and, consequently, of the land, to her for life, in the first instance ; but coupled with a condition, or a conditional limitation, no matter which, that she do not marry. Whether it be the one or the other, a limita- tion over is unnecessary, to give it effect ; for it is a familiar principle, that devises of land, whether to a widow or any one else, are governed, not by the civil, but by the common law, which knows nothing of a condi- tion ill terror eni..''^ In the case, however, of Williams et al. v. Cowden, 13 Mo. R. 211 ; where one, by his will, devised to his son, and to his daughter, in equal moieties, a tract of land, with the provision, that " if his said daughter should marry or die," the land should belong exclusively to his said son, it was held that the above condition attached to the estate of the daughter, is in restraint of marriage, and is void. "A condition annexed to the vesting of a legacy, requiring the guardian's approbation of the legatee's marriage, is not in terrorem only, when the condition is confined to mar- riage under twenty-one, and there is a limit- ation over." Collier, Exr., v. Slaughter's Adrar., 20 Ala. R. 263. For further instances of gifts or devises during widowhood, see, Drury et al. v. Grace, 2 Har. & Johns. R. 356 ; Crosby v. Wendell et al., 6 Paige's C. R. 548 ; Picot V. Armistead, 2 Ired. C. R. 226; Bankhead, Admr., v. Carlisle, Admr., 1 Hill's C. R. 368; Williams v. Vancleave, 7 Mon. R. 388 ; Dand- ridge et al. v. Dorrington, 6 Call's R. 361 ; Blunt et al. v. Gee et al.. Id. 481 ; Taylor v. Birmingham, 29 Pa. St. R. 300. 472 OF PERSONAL ESTATE GENERALLY. for the benefit of the intended husband and wife and tlie children of the marriage. As marriage is a valuable consideration, (/.•) such settlements are binding on both parties if of full age. And an act of Parliament has recently been passed,(^) enabling every infant, not under twenty if a male, and not under seventeen if a female, to settle his or her property, whether real or personal, upon a mar- riage, provided the sanction of the Court of Chancery be obtain- ed. But if the settlement be not made under the provisions of this act, and either husband or wife should be under age, the settlement will not be binding on him or her,(m) although the other party, if of full age, wnll be bound by it.(») And if both of them should be under age, neither of them will be bound by it. The circumstance of the settlement of an infant's per- sonal property beii^g fair and reasonable, and made with the ap- probation of his or her guardians, was formerly considered as giving it validity ;(o) but this circumstance seems to have no weight.' It has, however, been decided that a competent legal jointure(j:) settled on the intended wnfe, then an infant, with the concurrence of her guardiaus, in lieu of her right to dower out o her husband's freehold lands, and in lieu of her distributive share of his personal estate in ,the event of his intestacy, was sufficient to ( eprive her both of her dower and of her distribu- tive share in her husband's *personalty.(5') "When the •- -^ intended wife only is an infant, a settlement of her per- sonal estate in possession is valid, on account of the interest which, as we shall see, the law gives to the husband in such personal estate. The settlement in such a case is in fact not made by the wife, but by the husband, who, being adult, is bound by (k) Anle, p. 70. (/) Stat. 18 & 19 Vict. c. 43 ; Re Dalton, 6 De Gex, M. & G. 201, extended to the Court of Chancery in Ireland, by stat. 23 &, 24 Vict. c. 83. (m) Ellison v. Elwin, 13 Sim. 309 ; Le Vasseur v. Scratton, 14 Sim. 116. (n) Durnford v. Lane, 1 Bro. C. C. 106 ; Milner v. Lord Harewood, 18 Ves. 259. (o) 2 Roper's Hu.sband and Wife, 26. (;;) See Principles of the Law of Real Property, 174, 1st ed. ; 184, 2d ed. ; 191, 3d ed. j 192, 4th ed. ; 201, 6th ed. ; 211, 6th ed. (q) Earl of Buckingham v. Drury, 3 Brown's Par. Cas. 492. 1 The beneficial contracts of infants, are ment, or by positive acts, equivalent thereto ; voidable only, and may be ratified by them N. II. M. F. Ins. Co. v. Noyes, 32 N. H. R. after arriving at maturity, by express agree- 345 ; Manning v. Johnson, 26 Ala. R. 446. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 473 its provisions to the extent of the interest which he would have taken had no settlement been made.(r) If no settlement be made, the principles which govern the rights of husband and wife to personal property must still be traced to the circumstances of ancient rather than of modern times. In ancient times landed property was by far the most important; and the wife was accordingly entitled to a provision out of the lands of her husband, in the event of her surviving him, which no alienation that he could make, nor any debts which he might incur, were able to set aside. (-s) But in those days per- sonal property was of too insignificant a value to be the subject of any such provision. And if a woman now marry without a settlement, she has still no claim on her husband's personal estate, however large, unless he should happen to die intestate, in which case, as we have already mentioned, she is entitled to a third or a half of what he may leave, according as he may or may not leave issue surviving him. A husband, on the other hand, was in ancient times considered absolutely entitled to such personal chattels as his wife might possess. In this respect the law was then both simple and sufficient. By the act of marriage, the wife placed herself under the coverture or protection of her hus- band. She became in the law French of those days a feme covert. Thenceforth all demands to which she was personally liable were to *be answered by her natural protector. The wife was r^^ 044-1 considered as merged in her husband, and both were re- *- -' garded as but one person. (/) So long, therefore, as the coverture continued, that is, during the joint lives of the husband and wife, the husband was absolutely entitled to all personal property which his wife might acquire, and was also liable to the payment of all debts which she might previously have incurred.' These simple principles still pervade the law relating to the husband's (r) Trollope v. Linton, 1 Sim. & Stu. 477, 485. (a) See Principles of the Law of Real Property, 172, 1st ed. ; 182, 2d ed. ; 189, 3d ed.; 190, 4th ed. ; 199, 5th ed. ; 209, 6th ed. {/) Pr. R. P. 104, Lst ed. ; 170, 2d ed. ; 18:i, M ed. ; 184, 4th ed. ; 190, 5th ed. ; 200, 6th ed. ' For the statutes of the several States on Curtesy, Divorce, Dower, Feme Covert, Joint- this subject, see generally, the titles Husband ure, Marriage, Married Women, Widow, Ac. and Wife, Abatement, Alimony, Conveyance, Ac, as contained in the resjiective Digests. 474 OF PERSONAL ESTATE GENERALLY. interest in his wife's personal estate, although the several differ- ent species of personal estate to which modern civilization has given rise, conjoined with the rules of equitahle administration laid down hy the Court of Chancery, have given to this branch of law a perplexity unknown to the simple, though somewhat harsh, rules of our ancestors. In the first place, then, personal property of the ancient kind, namely, chattels personal or movable goods, belonging to the wife at the time of her marriage, or given to her afterwards, be- come the absolute property of her husband in the same manner precisely as if they had been originally his own, or had been subsequently given to him.(Z)^) He may dispose of them as he pleases in his lifetime or by his will; they will be subject to his debts; and if he should die intestate, the wife will have no fur- ther claim to them than to any other of his effects. So impera- tive is this rule, that if chattels personal be given to a married woman jointly with a stranger, the law will instantly sever the jointure, and make the husband and the stranger tenants in common, (t') r*Qzifii *The only exceptions to this sweeping rule are the -' wife's paraphernalia, so called from the Greek Tiapacpep'^rj, being things to which the wife is entitled over and above her dower. The wife's paraphernalia consist of her apparel and or- naments suitable to her rank and degree ; [x] and gifts made by the husband to his wife of jewels or trinkets to be worn by her as ornaments are considered as part of her paraphernalia. (_?/) These articles, equally with the wife's other personal chattels, may be disposed of by the husband in his lifetime, (2) and, with the exception of the wife's necessary clothing, are also liable to his debts, (a) The wife also herself has no power to dispose of them by gift or will during her husband's lifetime. (6) But para- (v) Co. Litt. 300 a; 351 b; Bac. Abr. tit. Baron and Feme (C), 3; 1 Rop. Husb. and Wife, 169. {v) Bracebridge v. Cook, Plowden, 4] 8. See Ke Barton's Will, 10 Hare, 12. (x) 2 Bl. Com. 436 ; 2 Rop. Husb. and Wife, 140 ; 11 Vin. Abr. tit. Executors (Z. 5). (y) Graham v. Londonderry, 3 Atk. 394 ; Jervoise v. Jervoise, 17 Beav. 566. (z) Ibid. ; 2 Rop. Husb. and Wife, 141. (a) 2 Bl. Com. 436 ; Ridout v. Earl of Plymouth, 2 Atk. 104; Lord Townsend v. Wind- ham, 2 Ves. Sen. 1, 7. {b) 2 Rop. Husb. and Wife, 141. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 475 pliernalia differ from the wife's other personal chattels in this re- spect, that the hushancl, though he may dispose of them iu his lifetime, has no power to bequeath them away from his wife by his will.(c) Gifts of jewels or trinkets made to the wife by a relative or friend, either upon or after her marriage, will gen- erally be considered in equity as intended for her separate vse,{d) in which case they will not be reckoned amongst her parapher- nalia, but will, as we shall hereafter see, be exempt from the con- trol and debts of her husband, and may be disposed of by the wife in the same manner as if she were unmarried. With regard to such of the wife's personal estate as is not in possession, but for which she has only a right to *sue, the r;^o4g-| rights of the husband are different, according as the pro- '- ceedings against the persons liable to be sued must be taken in a court of law or of equity. Property of this nature, as we have already seen,(e) is termed in law French choses in action: such as may be recovered by action at law are called legal choses in action, and such as must be recovered by suit in equity are called equitable choses in action. With regard to each of them, the rights of the husband are of a different kind, although in each the same rule applies, that if he can get them into his possession during the coverture he has a right to keep them, otherwise they will belong to his wife.(/) Legal choses in action consist principally of debts due to the wife, and secured or not by bond, or by bills or promissory notes. Of all these the husband has a right to receive payment, and should payment be refused him, he may sue for them in the joint names of himself and his wife ;{fi) but bills and notes of the wife payable to order, being transferable by indorsement, may be in- dorsed by the husband alone, (A) or sued for in his own name.(;y (f) Tipping V. Tipping, 1 P. Wma. 730 ; Northey v. Northey, 2 Atk. 77. (d) Graham v. Londonderry, 3 Atk. 394; 2 Rop. Husb. and Wife, 143. (e) Ante, p. 4. (/) 2 Bl. Com. 434; 1 AVms. on Executors, pt. 2, bk. 3, ch. 1, s. 3. {g) 1 Rop. Husb. and Wife, 213, 214; Sherrington v. Yate.?, 12 Mee. & Wels. 855. In this case, the note was not payable to order, and therefore not negotiable. (A) Mai-on v. Morgan, 2 Ad. & El. 30, E. C. L. R. vol. 29. (^■) Burrough v. Moss, 10 Barn. & Cress. 558, E. C. L. R. vol. 21. 1 Evans v. Secrest, 3 Ind. R. 545 ; Holland 111. R. 223 ; Tritt's Admr. v. Colwell's Admr., V. Moody, 12 Id, 170 ; Young v. Ward, 21 31 Pa. St. R. 228. 476 OF PERSONAL ESTATE GENERALLY. All such legal choses in action as accrued to the wife after her marriage may be sued for by the husband, eitlier in the joint names of himself and his wife, or in his own name only ;(/.•) but if the wife has really no interest, he cannot of course make use of her iiame.(/) If the husband should sue in the joint names of ^ himself and his wife, the benefit of the judgment of *the '-'^ ^-1 court will in case of his decease survive to her;(m) but if he sue in his own name, the benefit of the judgment will form part of his own personalty. If, however, the husband should not have received the money in his lifetime, or should not have obtained judgment for it in his own name, his wife will, on his decease, be entitled by survivorship to the chose in action so remaining still unreduced into possession •,{n) and bills and notes form no exception to this rule.(o) But, if the wife should die before her husband, these choses in action, still remaining unre- duced, will form part of her personal estate ; and her husband must take out administration to her effects before he can proceed to recover them;(p) when recovered, they will, with the rest of her personalty, belong to himself absolutely, after payment of her debts.(5) The only exception to this rule occurs in the case of the husband being entitled, in right of his wife, to " any es- tate in fee simple, fee tail, or for term of life, of or in any rents "or fee-farms," in which case the husband, after the death of his wife, is empowered by statute(7^) to recover the arrears accrued to his wife before marriage by action of debt or distress. But this provision does not apply to the rents reserved upon leases for years, (.s) Equitable choses in action consist principally of legacies, re- siduary-personal estate of testators, and money in the funds. (/,) 1 Eop. Husb. and Wife, 213. (/) Abbot V. Blofield, Cro. Jac. 644. (ot) 1 Vern. 396 ; 1 Rop. Husb. and Wife, 212. (7i) Co. Litt. 351 b. (o) Richards v. Richards, 2 Barn. & Adol. 447, E. C. L. R. vol. 22 ; Gaters v. Madeley, 6 Mee. k Wels. 423 ; Hart v. Stephens, 6 Q. B. 937, E. C. L. R. vol. 58 ; Scarpellini v. Atcheson, 7 Q. B. 864, E. C. L. R. vol. 53. (;;) 1 Rop. Husb. and Wife, 205. See Betts v. Kimpton, 2 B. & Adol. 273, E. C. L. R. vol. 22. {q) Stat. 29 Car. II, c. 3, s. 25, a)ite, p. 333. (r) Stiit. 32 Hen. VIII, c. 37, s. 3. {s) Prescott v. Boucher, 3 Barn. & Adol. 849, E. C. L. R. vol. 23. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 477 But all kinds of property, including, as is *now decided, p^^qj^Q-, both freehold estate(i') and chattels real,(i<) vested in trus- *- -' tees, who are answerable only to the Court of Chancery, are subject to a rule of equity, by which equitable choses in action are mainly distinguished from such as are merely legal. This rule is as follows: that the Court of Chancery will not assist, nor, if the wife should dissent, will it allow, the husband to recover or receive any property of his wife recoverable only in that court, without his settling a due proportion of such property on his wife and children. (x) The right of the wife to such a pro- vision is termed the wife's equity for a seitlement.{iff In fixing the proportion to be settled, a prior settlement will always be taken into account.(x:) But wdiere no settlement has previously been made, the proportion required to be settled on the wife is most frequently one-half ;(a) and sometimes the court has gone so far as to require a settlement of the whole fund. (6) Although the children are usually inserted in the settlement, yet the right is personal to the wife, and may be waived by her;(c) nor will it survive to the children in *case of her decease before the [-:^q4Q-^ court has made its decree ;((/) but if she die after the de- {t) Sturgis V. Champneys, 5 Myl. & Cr. 97 ; Wortham v. Pemberton, 1 De Gex & S. 644 ; Gleaves v. Paine, 1 De Gex, J. & S. 87. See, however, Sugd. V. & P. 450, 13th ed. ; 560, 14th ed. {it) Hanson v. Keating, 4 Hare, 1. (a-) It was formerly held, that a wife'-s equity to a settlement, did not extend to sums under £200 ; Foden v Finney, 4 Russ. 428; but this distinction is now abolished ; In Re Cutler, 14 Beav. 220; Re Kincaid, 1 Drew. 326. {y) 1 Rop Husb. and Wife, 256 et seq. (z) March v. Head. 3 Atk. 720 ; Lady Elibank v. Montolieu, 5 Ves. 737 ; Erskine's Trust. 1 Kay & John. 302. («/) 1 Rop. Husb. and Wife, 260 ; Archer v. Gardiner, 1 C. P. Coop. 340. (A) Brett v. Greenwell, 3 You. & Coll. 230 ; Gardner v. Marshall, 14 Sim. 575 ; Scott v. Spashett, 3 Mac. & Gord. 599 ; Dunkley v. Dunkley, L. C. 16 Jur. 767; 2 De Gex, M. & G. 390 ; Marshall v. Fowler, 16 Beav. 249 ; Gent v. Harris, 10 Hare, 383 ; Re Welchman, 1 GifF. 31. {r) Murray v. Lord Elibank, 13 Ves. 6. But the wife having once insisted on her right, cannot afterwards waive it; Barker v. Lea, fi Mad. 330 ; Whittem v. Sawyer, 1 Beav. 693. {(l) De la Garde v. Lempriere, 6 Beav. 344, overruling Steinmitz v. Ilalthin, 1 Glyn & Jam. 64; Baker v. Bayldon, 8 Hare, 210 ; Wallace v. Auldjo. V. C. K. 9 Jur. N. S. 687, afifirmed by Lords Jus. 11 W. R. 972. 1 Poindexter v. Jeffries, 15 Gratt. R. 363 ; Moore, 14 B. Mon. R. 259. See also Hill on Lowe V. Cody, 29 Geo. R. 117; Smith v. Trustees, pages 405, and 408 to 415, and Long, 1 Met. (Ky.) R. 486 ; Copi)e, 110. s. 10 (infancy, coverture, lunacy), 370, 371, 373. s. 11 (joint debtor, absence beyond seas), 283, 372. s. 12 (absent debtors), 283, 370, 373. s. 13 (debts, limitations), 73, 78, 79, 373. s. 14 (co-contractor's interest), 78. c. 108 (Small Debts Act), 6, 92. 20 & 21 Vict. c. 14 (winding-up acts), 191, 200, 201. 0. 49 (joint stock companies), 200, 201. c. 54 (fraudulent trustees, bankers), 270. c. 57 (disposition of wife's reversionary interest), 350, 363. c. 77 (Court of Probate Act, 1857), 305, 328. s. 3 (lords of manors), 306. s. 23 (court of record), 91. s. 29 (practice), 308. ss. 46, 47 (district registry), 307. s. 59 (abode of testator), ib. s. 70 (administrator pendente lite), 330. s. 71 (receiver), 331. ss. 72, 74 (administrator), 330. s. 73 (administration), 331. s. 79 (executor), 304. s. 86 (voidable probates), 307. c. 78 (Joint Stock Companies Winding-up), 200. c. 79 (probates), 309. c. 80 (Joint Stock Companies), 201. c. 85 (Court for Divorce and Matrimonial Causes), 360. s. 7 (decree for judicial separation), ih. s. 21 (protection order), ib. ss. 24, 32 (alimony), ib. s. 25 (wife feme sole), 361. s. 26 (wife's necessaries, joint power), 361. s. 35 (custody and maintenance of children), ib. s. 45 (children's settlement), ib. s. 57 (petition), 327. 21 & 22 Vict. c. 27 (Court of Chancery), 61. c. 56 (probates), 309. c. 60 (joint stock companies), 200, 201. 0. 70 (copyright), 234. 564 INDEX. Statutes cited. 21 & 22 Vict. c. 74 (small debts), 92. c. 91 (joint stock companies), 200, 201. c. 95 (executors), 304, 305, 309, 328, 329, 331, 332. c. 101 (Court for Divorce), 210. c. 108 (wife's property), 360, 361. 22 Vict. c. 13 (patents, munitions of war), 219, 220. 22 & 23 Vict. c. 35, ss. 4, 6 (fire insurance), 162. s. 7 (informal insurance), 163. s. 8 (purchaser), ib. s. 12 (powers), 247. s. 21 (assignment to self), 380. s. 23 (payment of money by trustees), 264. s. 24 (concealment of deeds), 380. s. 26 (power of attorney), 368. ss. 27, 28, 29 (administration), 314, 329. s. 30 (trustees may apply for opinion of judge), 270. s. 31 (trustees), 269. s. 32 (investments), 259. c. 36 (stamps on probates), 309. c. 61 (divorce amendment), 360, 361, 362. 23 Vict. c. 5 (Indian government notes), 310. c. 15 (probate), 35, 83, 310. c. 28 (stock-jobbing), 88. 23 & 24 Vict. c. 38, ss. 3, 4 (registered judgment), 99. s. 8 (concealment of deeds), 380. s. 9 (trustees may apply for opinion of judge), 270. s. 10 (investments), 260. s. 11 (investments), ib. 8. 12 (investments), 259. s. 14 (accounts in chancery), 31.3, 329. c. 58 (friendly societies), 210. c. 83 (infants' settlements, Ireland), 342. c. 106 (railways), 192. c. Ill (stamps), 35, 80, 83, 161, 186. 0. 126, s. 13 (Common Law Procedure Act, 1860, bill of sale), 50. ss. 28-31 (garnishee), 114. s. 32 (costs), 61. c. 144 (divorce), 362. c. 145, s. 25 (investment of trust moneys), 261. s. 26 fmaintenance), 256. s. 27 (appointment of trustees), 265. s. 29 (receipt of trustees), 264. s. 30 (executors), 313. s. 34 (date of operation), 256, 261. c. 147 (creditors), 123. 24 Vict. c. 3 (transfer of stock), 184, 376. c. 10 (Court of Admiralty), 29, 91. c. 14 (post-office savings banks), 211. 24 & 25 Vict. c. 73 (designs for articles of manufacture), 234. c. 91, s. 30 (stamps on appointment of new trustees), 266. s. 34 (fixtures, bills of sale), 47. 0. 92, s. 3 (probate, voluntary debts), 311. c. 114 (domicile), 298, 299. c. 121 (domicile), 299, 300. c. 134 (Bankruptcy Act, 1861), 124, 155. s. 2 (reduction of London commissioners), 134. s. 3 (jurisdiction of county courts), ib. s. 4 (county courts) ib. INDEX. 565 Statutes cited. 24 & 25 Vict.c. 134, ss. 19-27 (abolition of insolvent court), 155. 8. 68 (appeal), 144. s. 69 (all debtors subject to bankrupt laws), 155, 156. s. 71 (acts of bankruptcy), 126, 127, 157. s. 72 (declaration of insolvency), 127, 157. s. 73 (execution), 47, 98, 107, 128. s. 74 (sale of goods by auction), 48. 8. 75 (insolvency in colonies), 128, 157. 8. 76 (judgment debtor summons), ib. s. 77 (decrees and orders), 129, 157. 8. 79 (service of summons), 129. s. 82 (examination of debtor), ib, a. 83 (summons, adjudication of bankruptcy), ib. ;, s. 84 (adjudication), 130, 134. 8. 86 (petition by debtor), 127. s. 87 (petition), 132. • s. 89 (petitioning creditor's debt), ib. s. 93 (tiling statement of liabilities by debtor), 128. 8. 96 (powers for court to adjudicate), 132. 8. 97 (computation of debts), 133. ss. 98-107 (pauper and lunatic prisoners), 157. s. 108 (official assignees), 50. s. 109 (proof of debts), 136. s. 110 (power to suspend proceedings), 145. s. 116 (creditors' assignees), 135, 140. s. 417 (assignees), 50, 135. s. 118 (official assignee), 135. s. 128 (debts under £10), 136. s. 132 (mortgagee), 140. s. 133 (mortgage by assignees), 143. s. 134 (half-pay, &c.), 158. s. 135 (sequestration of benefice), ib. s. 137 (power to sell debts, goodwill, &c.), 143. s. 144 (proof of debts), 136. 8. 146 (proof of debts), ib. 8. 149 (costs), 138. s. 150 (apportionment of rent), ib. s. 151 (debts payable by instalments), ib. s. 152 (dividends of joint and separate estates), 288. 8. 153 (damages), 139. s. 154 (policies of insurance), ib. 8. 155 (proof of debt), ib. s. 157 (certificates), 146. 8. 159 (after acquired property), 147. 8. 161 (order of discharge), ib. s. 163 (discharge), 282. s. 164 (barred debt), 72. 8. 174 (allowance to bankrupt), 143. 8. 177 (joint estates), 288. 8. 185 (power to wind up by deed), 145. 8. 1*^6 (power to wind up by deed), ib. 8. 187 (registration of deed), 146. 8. 192 (trust deeds for creditors), 120. 8. 193 (registration), ib. s. 194 (registration), 116. 8. 195 (stamps), 120. s. 196 (registration), 117. 8. 197 (jurisdiction after registration), 120. 566 INDEX. Statutes cited. 24 & 25 Vict. 0. 134, s. 198 (protection), 121. s. 200 (assent of creditors), 112. s. 203 (evidence), 148. s. 204 (signature of commissioner or registrar), ib. s. 232 (acts. construed together), 51. 25 & 26 Vict. c. 63 (Merchant Shipping Act Amendment Acts, 1862), 29, 52. s. 3 (equities against owners and mortgagees of ships), 54. s. 45 (certificate of registry), ib, ss. 47, 48, 53 (loss of certificate), ih. s. 50 (certificate of registrj^), 55. s. 55 (transfer of registered ships), ih. ss. 66-78 (lien for freight), 29-59. c. 68 (copyright works of art), 231. c. 81 (divorce), 362. c. 86, ss. 12-14 (lunatics or idiots), 191. c. 87 (industriarand provident societies), 211. c. 88 (fraudulent marking of merchandise), 235, 370. c. 89 (Companies Act, 1862), 191, 196, 198, 200, 201. s, 4 (partners), 201. s. 6 (memorandum of association), ih. s. 7 (liability may be limited), 202. s. 8 (shares), ih. s. 9 (guarantee), 203. s. 10 (memorandum of unlimited company), ih. s. 11 (effect of memorandum), ih. s. 12 (powers to alter memorSndura), 204. s. 13 (change of name), ib, s. 14, 15 (articles of association), ih. s. 16 (stamp on articles), ib. s. 17 (registration of articles), ib. s. 18 (certificate of incorporation), ih. 8. 21 (license to hold land), 205. s. 22 (shares personal estate), ih. • s. 25 (register), ib. s. 26 (annual list of members), ih. s. 30 (register of members), ib. s. 31 (certificate of shares), ib. s. 37 (register, evidence), ib. s. 38 (liability of contributories), 208. s. 39 (registered ofiQce), 205. s. 41 (name of limited company), 206. s. 43 (mortgages and changes), ib. 8. 44 (annual statement), ib, s. 47 (bills and notes), 292. s. 50 (special resolution), ih. s. 51 (special resolution), 207. s. 53 (registry of special resolution), ih. 8. 54 (copies of ditto), ih. s. 74 (contributories), 208. 8S. 79-128 (winding up by the court), 207, 208. ss. 92-97, 133-144 (official liquidators), ib. ss. 128-146 (voluntary winding up), 207. ss. 147-152 (supervision of court), ih. s. 182 (banking companies), 201. 26 Vict. c. 14 (post office savings banks), 211. c. 28 (stock certificates), 185. 26 & 27 Vict. c. 41 (lien of innkeepers), 28. c. 56 (loan societies), 211. INDEX. 567 Statutes cited. 26 & 27 Vict. c. 57 (regimental debts act), 310. c. 92 (Clauses Consolidation Act, railways), 192. c. 93 (ditto waterworks), ib, c. 105 (bills and notes), 80. c. 118 (Companies Clauses Consolidation Act), 192. Statutes mercbant and staple, 100. Stock in trade, assignment of, 32. in the funds, 181-190. is personal estate, 183. jobbing, 87, 185. transfer of, 184. contract for sale of, 186. distringas on, 187. charge of judgment on, 188. transmission of, by will, 189. unclaimed dividends on, 375. notice to trustee on assignment of, 377. Stolen goods, 366. Stop order, 378. Stoppage in transitu, 41. Submission to arbitration, 165, 167. by assignees in bankruptcy, 293. Succession Duty Act, 1853, 275, 277, 316. Superior courts of record, 91. Sureties, 108, 109. discharge of, 110. proof of debts paid by, 136. SURTIVORSHIP amongst joint owners, 283. none in equity of joint securities, 280. none amongst owners in common, ib. amongst joint debtors, 283. as to joint and several debtors, 283. of office of executor, 303. Tail, estate, none in personal property, 242. Tenant without impeachment for waste, 18. for years or for life, ib. joint, 323. in common, ib. Tenterden, Lord, his act. — See statute 9 Geo. IV, c. 14. Testamentary alienation, growth of right of, 294. See Will. Timber, 16, 18. trees, what are, ib. Title, 365. to money and negotiable securities, ib. to chattels personal, 366. to stolen goods, ib. to horses stolen, 367. under factors and agents, 368. warranty of, ib. under statutes of limitation, 370-374. to unclaimed dividends, 375. to choses in action by notice, 377-379. through deeds, wills, &c., 379. 668 • INDEX. Title, abstract of, ib. covenants for, ih. to shares, ib. comparison of, to real and personal estate, 380. to goods bond Jide acquired, 48, 366. deeds, 9, 11. solicitor's lien on, 29. Tombstone, 13. Trade, contracts in restraint of, 86. marks, 234, 235. bankruptcy of partners in, 286. liability of executors carrying on, 289. customs of, 369. Traber, who is, within the bankrupt laws, 124*. Transfer of stock, 184. Trover and conversion, 23, 45. recovery in, 43. Trust, though voluntary, enforced in equity, 34. settlements by means of, 239. funds, act for better securing, 270. for payment of creditors, when revocable, 272. . for wife's separate use, 354. form of, o'f stock, 390. none entered on ship's register, 53. Trustee Act, 1850.. 266. Trustees, former liability of, not investing in consols, 183. transfer of stock when they refuse, 184. infant, 186. power to appoint new, 264, 265. costs of,- 267. responsibilities of, ib. indemnity and reimbursement of, 269. act for relief of, 270. punishment of fraudulent, ib. power to apply for opinion of judge, ib. ' of personal estate made joint owners, 277. notice to, on assignment of chose in action, 377. inquiry of, as to prior assignments of choses in action, ib. form of usual clauses in settlement as to, 399. U. Umpire, 176, 177. Uncertificated bankrupt, 147. Unclaimed dividends, 375. Unlawful contracts, 69, 84. Use, conveyance by way of, 11. Usurious contracts, 89. V. Vendor's lien, 41. Vested interests, 239. the courts lean to, 253. giving, to children by settlement, 254. Voluntary trust enforced, 34. bonds, 105. preference in bankruptcy, 144, 151. settlement, void as against creditors, 272. binding on settlor, 273. INDEX. 569 Voluntary settlement of personal estate not void as against subsequent pur- chasers, 274. W. Wagers void, 88. Wages to servants of bankrupt, 144. Wales, custom of, 294, 335. Warrant of attorney, 93. to secure annuity, 94. execution and attestation of, 95. to be filed within twenty-one days, 96. in case of bankruptcy, ih. WARRANTYon Sale of goods, 368. Waste, tenant without impeachment of, 18. being impleaded of, ib. Widow, usually preferred in grant of administration, 328. her share under the Statute of Distribution, 332. when deprived of her distributive share by settlement, 342. Widowhood, gift to a woman during, 340. Wife, executrix, 302. covenant to settle her future property, 270. no duty on legacy to, 315. a feme covert, 343. her chattels personal belong to her husband, 344. her paraphernalia, 345. her legal choses in action, 346. her equitable choses in action, 347. her equity to a settlement, 348. disposition of her reversionary interests, 350, 351. her husband's liability to her debts, 353, 358. her will of her personal estate, 354. trusts for her separate use, 354, 355. restraint on her anticipation, 356. powers may be exercised by, 247. separation of, 357. protection when deserted by her husband, 360. her alimony, ib. a feme sole, 361. See Married Woman. Will, 294. attestation of, 296. revocation of, 298. domicile, 298, 299. executor of, 301. probate of, 305-310. ecclesiastical jurisdiction over, 306. registration of, in Court of Probate, 307. of wife, by husband's authority, 354. Winding-up Acts, 199. Witnesses, examination of, by arbitrators, 169. to a will, 296. Writ of mandamus, 60. of injunction, ib, 0? fieri facias, 48. of levari facias, 49. of elegit, ib. of capias ad satisfaciendum, 100. WRiTiNfJ, what contracts to be in, 37, 39, 73. 37 570 INDEX. Y. Year, agreement not to be performed within a, 75. of executor, 313. of administrator, 329. York, custom of province of, 294, 335. Younger children, 250. i L t5NIVERSnT OF CALDPOBNIA T/>S AJ^GELES J ofSr% UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 821 969